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[ { "docid": "343515", "title": "", "text": "Seyler to use a public highway on his own reservation. Nor is Seyler, while on his tribe’s reservation, in a position at all comparable to that of a “person entering” land of another for recreational or any other purposes. We therefore conclude that Idaho’s recreational use statute does not bar plaintiff’s suit, and we reverse the district court’s order. Our prior decisions are not to the contrary. In O’Neal v. United States, 814 F.2d 1285 (9th Cir.1987), we held that Oregon’s recreational use statute barred recovery by hunters who were injured while driving on a Bureau of Land Management logging road. Id. at 1286-87. In that case, however, extending tort immunity to logging roads furthered the purpose of the recreational use statute: if liability were imposed in cases like O’Neal, the government “might well choose to close the forests to public use rather than bear the heavy burden of maintaining logging roads as public thoroughfares.” Otteson v. United States, 622 F.2d 516, 519 (10th Cir.1980); see also Jones v. United States, 693 F.2d 1299, 1303 (9th Cir.1982) (concluding that recreational use statute applies to ski slope in national park because “[t]he United States could close a park or a part thereof and restrict its use”); Idaho Code § 36-1604(a) (stating that “[t]he purpose of this section is to encourage owners of land to make land and water areas available to the public without charge for recreational purposes”). In the present case, Agency Road 11 is a public thoroughfare, and nothing in the record suggests that the Bureau of Indian Affairs (BIA) has anything like a private landowner’s power to close the road to public use. Idaho’s recreational use statute simply does not apply. 2. The discretionary function exception The discretionary function exception excludes from the FTCA’s ambit “[a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). The purpose of the exception is “to" } ]

[ { "docid": "21082324", "title": "", "text": "their claims that the Park Service’s design of the Road required warning signs and a lower speed limit at the accident site. We therefore turn to consider whether the district court erred in finding that the discretionary function exception to the FTCA bars these claims. 1. Discretionary function exception “A party may bring an action against the United States only to the extent that the government waives its sovereign immunity.” Valdez v. United States, 56 F.3d 1177, 1179 (9th Cir.1995). The FTCA waives the government’s sovereign immunity for tort claims arising out of the negligent conduct of government employees acting within the scope of their employment. Id. Thus, the government can be sued “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b). The FTCA’s waiver of immunity is limited, however, by the discretionary function exception, which bars claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). This exception “restores the government’s immunity in situations where its employees are carrying out governmental or ‘regulatory’ duties,” Faber v. United States, 56 F.3d 1122, 1124 (9th Cir.1995), and it “marks the boundary between Congress’ willingness to impose tort liability on the United States and the desire to protect certain decisionmaking from judicial second-guessing.” Conrad v. United States, 447 F.3d 760, 764 (9th Cir.2006) (citing Berkovitz v. United States, 486 U.S. 531, 536-37, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)). To determine whether the challenged conduct falls within the discretionary function exception, we employ a two-step analysis. First, we determine “whether the challenged actions involve ‘an element of judgment or choice.’ ” Valdez, 56 F.3d at 1179 (quoting United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991)). Our inquiry looks to “the nature of the conduct, rather than" }, { "docid": "12052458", "title": "", "text": "and regulations. See Johnson v. Sawyer, 47 F.3d 716, 728 (5th Cir.1995) (en banc) (“[T]he violation of a federal statute or regulation does not give rise to FTCA liability unless the relationship between the offending federal employee or agency and the injured party is such that the former, if a private person or entity, would owe a duty under state law to the latter in a nonfederal context. If the requisite relationship and duty exist, then the statutory or regulatory violation may constitute or be evidence of negligence in the performance of that state law duty.”). The FTCA, however, excepts discretionary functions and duties from this waiver of sovereign immunity. See 28 U.S.C. § 2680(a). This “discretionary function exception” provides that the waiver of sovereign immunity in § 1346(b) does not apply to: Any claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. Id. The “discretionary function exception is thus a form of retained sovereign immunity.” In re World Trade Ctr. Disaster Site Litig., 521 F.3d 169, 190 (2d Cir.2008). It “ ‘marks the boundary between Congress’ willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.’ ” Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954 (quoting United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984)). It is intended to “assure protection for the Government against tort liability for errors in administration or in the exercise of discretionary functions.” Dalehite v. United States, 346 U.S. 15, 26-27, 73 S.Ct. 956, 97 L.Ed. 1427 (1953) (citation omitted). In this case, plaintiff alleges a claim under the FTCA for FEMA’s purported wrongful denial of nondiscretionary funding of the Parish’s requested debris removal. Plaintiff also brings a claim pursuant to the APA for improper rulemaking under the Stafford Act. The APA is a" }, { "docid": "22265251", "title": "", "text": "and 1982 breaks. In the subsequent damages phase of the trial, the magistrate awarded damages of $1,225,805.08 to Kennewick, $147,019.99 to National Railway, and $31,905.00 to Burlington Northern for damages stemming from the 1979 break. In addition, the magistrate awarded damages of $200,288.00 to Kennewick for the 1982 break. For the costs of canal repair work, Kennewick was awarded an additional $123,265.23. II The United States first argues that its actions in designing and constructing the Kennewick main canal cannot give rise to liability under the FTCA because they fall within the “discretionary function” exception. We review independently the district court’s determination of subject matter jurisdiction under the discretionary function exception. Arizona Maintenance Co. v. United States, 864 F.2d 1497, 1499 (9th Cir.1989) (Arizona Maintenance); Mitchell v. United States, 787 F.2d 466, 468 (9th Cir.1986) (Mitchell), cert. denied, 484 U.S. 856, 108 S.Ct. 163, 98 L.Ed.2d 118 (1987). The FTCA authorizes civil suits against the United States for money damages ... for injury or loss of property, or personal injury ... caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b). The FTCA contains several exceptions, however, to this broad waiver of sovereign immunity. Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 1958, 100 L.Ed.2d 531 (1988) (Berkovitz). The discretionary function exception excludes from the purview of the FTCA “[a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). This exception “ ‘marks the boundary between Congress’ willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.’ ” Berkovitz," }, { "docid": "9719158", "title": "", "text": "individuals to sue the government when a government employee commits a tort. See 28 U.S.C. § 2674 (1994). There are, however, several exceptions to the FTCA which limit the extent of immunity. See generally 28 U.S.C. § 2680. One such exception dubbed the discretionary function exception provides as follows: [¶ 10] Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance of the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. 28 U.S.C. § 2680(a). If applicable, the discretionary function doctrine maintains sovereign immunity and thus deprives a court of jurisdiction. [¶ 11] The Supreme Court has set forth a two-part standard for determining when the discretionary function exception applies. Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 1958, 100 L.Ed.2d 531 (1988). The first prong requires that the conduct in question must “involve an element of judgment or choice.” Id. There is no judgment or choice involved when “a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.” Id. 486 U.S. at 536, 108 S.Ct. at 1958-59. Therefore, to satisfy the first prong of the standard plaintiff must indicate the existence of a federal mandate. Osborn, 918 F.2d at 730 (noting that plaintiff has the burden of proving jurisdiction exists in a 12(b)(1) factual attack) (citing Mortensen, 549 F.2d at 891). [¶ 12] If no federal mandate is established, thus making the action discretionary, the second element of the standard requires that the discretionary conduct be rooted in public policy. Berkovitz, 486 U.S. at 537, 108 S.Ct. at 1959; Dykstra v. United States, 140 F.3d 791, 795 (8th Cir.1998). In other words, the second prong works to protect “only governmental actions and decisions based on considerations of public policy.” Gaubert, 499 U.S. at 323, 111" }, { "docid": "7573558", "title": "", "text": "acting within the scope of them employment. 28 U.S.C. § 1346(b). The FTCA contains an exception to this broad waiver of immunity, however, for claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” Id. § 2680(a).... “The discretionary function exception ... marks the boundary between Congress’ willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.” United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). If the discretionary function exception applies to the challenged governmental conduct, the United States retains its sovereign immunity, and the district court lacks subject matter jurisdiction to hear the suit. See Johnson v. United States Dep’t of Interior, 949 F.2d 332, 335 (10th Cir.1991). Tippett, 108 F.3d at 1196-97 (second omission in original). In dozens of cases in the last decade, this court has determined whether government conduct was within the exception by using a two-branch analysis announced in Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531, 536-37, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). This court has summarized the analysis as follows: First, we determine whether the governmental conduct at issue “is a matter of choice for the acting employee.” [Berkovitz, 486 U.S.] at 536, 108 S.Ct. 1954. “[C]onduct cannot be discretionary unless it involves an element of judgment or choice. Thus, the discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.” Id. (citation omitted). In such a situation, “the employee has no rightful option but to adhere to the directive.” Id. If the conduct at issue involves an element of judgment or choice, Berko-vitz requires us to “determine whether that judgment is of the kind that the discretionary function exception was designed to shield.” Id. Congress preserved" }, { "docid": "21537544", "title": "", "text": "should be subject to liability arising from acts of a governmental nature or function”). To this end, the FTCA included the discretionary function exception, which excludes from the sovereign immunity waiver any claim “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). Thus, the discretionary function exception “marks the boundary between Congress’ willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals,” United States v. Varig Airlines, 467 U.S. 797, 808, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984), thereby serving to “ ‘prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort,’ ” Loumiet, 828 F.3d at 941 (quoting Varig Airlines, 467 U.S. at 814, 104 S.Ct. 2755). Since the FTCA was passed in 1946, the Supreme Court has articulated and refined a two-part test to determine whether a claim falls within the discretionary function exception. See United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991); Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988); Varig Airlines, 467 U.S. at 797, 104 S.Ct. 2755. Under this well-established framework for determining the applicability of the discretionary function exception, a court asks, first, whether the challenged actions “are discretionary in nature” and “involve an element of judgment or choice,” Gaubert, 499 U.S. at 322, 111 S.Ct. 1267 (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954; citing Dalehite 346 U.S. at 34, 73 S.Ct. 956); and, if so, second, “whether that [conduct] is of the kind that the discretionary function exception was designed to shield,” Gaubert, 499 U.S. at 322-23, 111 S.Ct. 1267 (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954; citing Varig Airlines, 467 U.S. at 813, 104 S.Ct. 2755); see also Loumiet, 828 F.3d at 942 (“[I]f the" }, { "docid": "11014653", "title": "", "text": "the bar of sovereign immunity is absolute and the plaintiff cannot redraft his claim to avoid the exception to the FTCA. Id. The FTCA provides a limited waiver of the federal government’s sovereign immunity when its employees are negligent within the scope of their employment. Under the FTCA, the government can only be sued “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b). Thus, the FTCA does not apply to conduct that is uniquely governmental, that is, incapable of performance by a private individual. The majority, in discussing the distinction between private acts and governmental conduct at pages 496-97 of their opinion, have failed to fully describe the incident that the plaintiff claims results in a cause of action under the Federal Tort Claims Act. That incident is the disclosure of the name of a government informant in an attempt to obtain other informants in foreign countries to act for the government in intelligence gathering against an international drug cartel. The majority have avoided trying to describe any case that would make it a tort by a private person. Furthermore, the FTCA is limited by a number of exceptions pursuant to which the government is not subject to suit, even if a private employer could be liable under the same circumstances. These exceptions include the discretionary function exception, which bars a claim “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). In order to determine whether the FBI’s conduct falls within the discretionary function exception, the courts must apply a two-part test established in Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 1958-59, 100 L.Ed.2d 531 (1988). See Kennewick Irrigation District v. United States, 880 F.2d 1018, 1025 (9th Cir.1989). First, the question must be asked whether the" }, { "docid": "5421798", "title": "", "text": "weigh the evidence or determine the truth of the matter but only determine whether there is a genuine issue for trial. Abdul-Jabbar v. General Motors Corp., 85 F.3d 407, 410 (9th Cir.1996). If the party moving for summary judgment meets its burden of showing that there is no genuine issue of material fact, the non-moving party may not rely on mere allegations but must set forth specific facts showing there is a genuine issue of material fact. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.1987). III. THE DISCRETIONARY FUNCTION EXCEPTION TO THE FEDERAL TORT CLAIMS ACT The FTCA waives sovereign immunity, allowing tort claims to be brought against the Government arising out of the negligent conduct of government agents acting within the scope of their employment. 28 U.S.C. §§ 2671-2680 (1994). The United States may be held liable “to the same extent as a private individual under like circumstances.” § 2674. A limitation on the waiver of sovereign immunity exists, however, where the government is performing a “discretionary function.” This exception immunizes the United States against any claim based on an act or omission of an employee of the Government ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. § 2680(a). The discretionary function exception “marks the boundary between Congress’s willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.” Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988) (quoting United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984)). It is designed to “prevent judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic and political policy through the medium of an action in tort.” United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113" }, { "docid": "23477331", "title": "", "text": "(9th Cir.1983); Baird v. United States, 653 F.2d 437, 440 (10th Cir.1981), cert. denied, 454 U.S. 1144, 102 S.Ct. 1004, 71 L.Ed.2d 296 (1982)). We explain below. The FTCA is a broad waiver of sovereign immunity, granting district courts jurisdiction to hear tort suits against the United States for damages caused by its employees acting within the scope of their employment, where the United States, if a private party, would be liable under the law of the place where the tort occurred. 28 U.S.C. §§ 2674, 1346(b). However, 28 U.S.C. § 2680 establishes fourteen exceptions to 28 U.S.C. § 1346(b). Among the fourteen statutory exceptions to this waiver of immunity is 28 U.S.C. § 2680(a) which exempts [a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. Section 2680 “marks the boundary between Congress’ willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.” Irving, 909 F.2d at 600 (citing United States v. Varig Airlines, 467 U.S. 797, 808, 104 S.Ct. 2755, 2761, 81 L.Ed.2d 660 (1984)). Because § 2680(a) is a limitation on the waiver of sovereign immunity, cases which fall within the discretionary function exception must be necessarily dismissed, as a matter of law, for lack of subject matter jurisdiction. The Supreme Court has provided some guidelines to determine whether or not a particular governmental function is discretionary and would come under the discretionary function exemption to the FTCA. “[I]t is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case.” Varig Airlines, 467 U.S. at 813, 104 S.Ct. at 2764. The Supreme Court has made" }, { "docid": "9719157", "title": "", "text": "to implement at Sheep Mountain Table. If it was a discretionary decision, then the FTCA waiver of immunity is not applicable and the Court is without jurisdiction. See United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 1273, 113 L.Ed.2d 335 (1991). The lynchpin of such a determination is the presence of federal statutes, guidelines, or policies which mandate certain conduct. Id. This inquiry differs from the merits of plaintiffs negligence claim against the defendant and is not so enmeshed that a trial on the merits is required. The Court may thus proceed to examine matters outside the pleadings without converting the motion to dismiss into a motion for summary judgment. Accordingly, plaintiffs motion to convert is denied. [¶ 8] B. Discretionary Function Exception [¶ 9] Having determined that defendant’s motion for lack of subject matter jurisdiction need not be converted into a motion for summary judgment the Court now turns to the discretionary function exception to the FTCA’s waiver of sovereign immunity. Enacted in 1948, the FTCA waives sovereign immunity and allows individuals to sue the government when a government employee commits a tort. See 28 U.S.C. § 2674 (1994). There are, however, several exceptions to the FTCA which limit the extent of immunity. See generally 28 U.S.C. § 2680. One such exception dubbed the discretionary function exception provides as follows: [¶ 10] Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance of the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. 28 U.S.C. § 2680(a). If applicable, the discretionary function doctrine maintains sovereign immunity and thus deprives a court of jurisdiction. [¶ 11] The Supreme Court has set forth a two-part standard for determining when the discretionary function exception applies. Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954," }, { "docid": "11593554", "title": "", "text": "the pad-eyes because the pad-eyes were open and obvious. A. Discretionary Function Exception The FTCA provides a limited waiver of the United States’ sovereign immunity in lawsuits alleging negligent conduct of a United States employee. 28 U.S.C. § 1346(b). However, the FTCA contains a number of exceptions to liability, including the discretionary function exception, which provides in pertinent part: The provisions of this chapter and section 1346(b) of this title shall not apply to— (a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. 28 U.S.C. § 2680(a). The basis for the exception was Congress’ desire to “prevent judicial ‘second guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” Berkovitz v. United States, 486 U.S. 531, 536-37, 108 S.Ct. 1954, 1958-59, 100 L.Ed.2d 531 (1988). The Supreme Court has also explained that the exception is intended to “protect the Government from liability that would seriously handicap efficient government operations.” United States v. Muniz, 374 U.S. 150, 163, 83 S.Ct. 1850, 1858, 10 L.Ed.2d 805 (1963). Although plaintiffs bear the burden of establishing subject matter jurisdiction under the FTCA, the defendant bears the burden of proving the applicability of the discretionary function exception. Prescott v. U.S., 973 F.2d 696, 702-704 (9th Cir.1992). Courts analyzing the discretionary function exception apply a two-step test. First, the challenged conduct must involve a matter of choice for the acting employee. Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). “The requirement of judgment or choice is not satisfied if a ‘federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow,’ because the ‘employee has no rightful option" }, { "docid": "6310773", "title": "", "text": "Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). “Summary judgment is appropriate when there is no genuine dispute over a material fact and the moving party is entitled to judgment as a matter of law.” Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir.1991). Any evidence tending to show triable issues will be viewed in the light most favorable to the nonmoving party. Bee v. Greaves, 744 F.2d 1387, 13396 (10th Cir.1984), cert. denied, 469 U.S. 1214, 105 S.Ct. 1187, 84 L.Ed.2d 334 (1985). III. The Discretionary Function Exception The district court dismissed appellants’ first four causes of action under the discretionary function exception to the Federal Tort Claims Act, 28 U.S.C. § 2680(a). The FTCA waives the sovereign immunity of the United States Government with respect to certain claims for personal injuries caused by government employees. 28 U.S.C. § 2671 et seq. Under the Act, the federal government can be held liable “in the same manner and to the same extent as a private individual under like circumstances.” Id. § 2674. However, the FTCA includes an exception to this waiver of sovereign immunity for claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of the federal agency or an employee of the Government, whether or not the discretion involved be abused.” Id. at 2680(a). The Supreme Court has characterized section 2680(a) as “the boundary between Congress’ willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.” United States v. S.A Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 2761, 81 L.Ed.2d 660 (1984). Its application is a threshold jurisdictional issue in any case brought under the FTCA. Johnson v. United States, Dep’t of Interior, 949 F.2d 332, 335 (10th Cir.1991). The determination of whether the discretionary function exception applies to a particular act involves a two-pronged analysis by the court. Berkovitz v. United States, 486 U.S. 531, 536-37, 108 S.Ct." }, { "docid": "2766760", "title": "", "text": "given case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. The governing law in this case, the FTCA, provides a limited waiver of the federal government’s sovereign immunity. The FTCA allows civil claims against the United States for injuries caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b). However, the FTCA preserves the government’s immunity against claims based on its performance of discretionary functions: The provisions of this chapter and section 1346(b) of this title shall not apply to— (a) Any claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. 28 U.S.C. § 2680(a). The discretionary function exception “marks the boundary between Congress’ willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.” United States v. S.A. Empresa de Viacao Aerea Rio Grándense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 2762, 81 L.Ed.2d 660 (1984). Where the governmental conduct at issue falls within the discretionary function exception, the district court lacks subject matter jurisdiction to hear the suit. Tippett, 108 F.3d at 1196. Whether the exception applies “presents a threshold jurisdictional determination which we review de novo,” Domme v. United States, 61 F.3d 787, 789 (10th Cir.1995), using a two-part test announced in Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). First, we determine whether the governmental conduct at issue “is a" }, { "docid": "6310774", "title": "", "text": "§ 2674. However, the FTCA includes an exception to this waiver of sovereign immunity for claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of the federal agency or an employee of the Government, whether or not the discretion involved be abused.” Id. at 2680(a). The Supreme Court has characterized section 2680(a) as “the boundary between Congress’ willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.” United States v. S.A Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 2761, 81 L.Ed.2d 660 (1984). Its application is a threshold jurisdictional issue in any case brought under the FTCA. Johnson v. United States, Dep’t of Interior, 949 F.2d 332, 335 (10th Cir.1991). The determination of whether the discretionary function exception applies to a particular act involves a two-pronged analysis by the court. Berkovitz v. United States, 486 U.S. 531, 536-37, 108 S.Ct. 1954, 1958-59, 100 L.Ed.2d 531 (1988). First, in order for the exception to apply, the act must “involve an element of judgment or choice.” Id. at 536, 108 S.Ct. at 1958. Under this first prong, we must determine whether a specific and mandatory regulation, statute or policy requires a particular course of action. Id. If such a statute or regulation is applicable, there is no discretion involved and the disere- tionary function exception does not apply. Id. If, on the other hand, the government’s conduct is not controlled by a such a directive, the court must proceed to the second prong of analysis and determine whether the discretion involved in the governmental act “is the kind that the discretionary function was designed to shield.” Id. at 537, 108 S.Ct. at 1959. The exception was designed to protect only discretion “based upon considerations of public policy.” Id. at 537, 108 S.Ct. at 1959. This interpretation of the exception is based upon Congress’ desire to “prevent judicial ‘second guessing1 of legislative and administrative decisions grounded in social," }, { "docid": "19693481", "title": "", "text": "L.Ed.2d 501 (1987), the district court was required to convert- the government’s 12(b)(1) motion into a Rule 12(b)(6) motion or a Rule 56 motion for summary judgment, see Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). Because the district court considered matters outside of the pleadings, and in an exercise of our plenary power, we treat the government’s motion as a motion for summary judgment under Rule 56, see Redmon ex rel. Redmon v. United States, 934 F.2d 1151, 1155 (10th Cir.1991). Under the FTCA, the United States waives its sovereign immunity with respect to certain injuries caused by government employees acting within the scope of their employment. 28 U.S.C. § 1346(b). The FTCA contains an exception to this broad waiver of immunity, however, for claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” Id. § 2680(a). Section 2680(a) is commonly referred to as the “discretionary function exception” to the FTCA. See Daigle v. Shell Oil Co., 972 F.2d 1527, 1537 (10th Cir.1992). “The discretionary function exception ... marks the boundary between Congress’ willingness to impose tort. liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.” United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 2762, 81 L.Ed.2d 660 (1984). If the discretionary function exception applies to the challenged governmental conduct, the United States retains its sovereign immunity, and the district court lacks subject matter jurisdiction to hear the suit. See Johnson v. United States Dep’t of Interior, 949 F.2d 332, 335 (10th Cir.1991). “[Ajpplication [of the exception] therefore presents a threshold jurisdictional determination which we review de novo.” Daigle, 972 F.2d at 1537. In order to determine whether the discretionary function exception applies in cases brought under the FTCA, we utilize the two-prong analysis of Berkovitz ex rel. Berkovitz v. United States, 486 U.S." }, { "docid": "15084335", "title": "", "text": "Standard of Review This court reviews de novo a district court’s determination that it lacks subject matter jurisdiction under the FTCA and a district court’s application of the FTCA’s discretionary function exception. Terbush, 516 F,3d at 1125. The plaintiff has the burden of showing there are genuine issues of material fact as to whether the exception should apply, but the government bears the ultimate burden of establishing that the exception applies. Miller v. United States, 163 F.3d 591, 594 (9th Cir.1998). Analysis The FTCA waives the federal government’s sovereign immunity for tort claims arising out of the negligent conduct of government employees and agencies in circumstances where the United States, if a private person, would be liable to the claimant under the law of the place where the act or omission occurred. Terbush, 516 F.3d at 1128-29. However, the discretionary function exception provides an exception to the waiver of immunity from suit under the FTCA for “[a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). If the exception applies, immunity is reinstated. The discretionary function exception “marks the boundary between Congress’ willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.” Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). According to the Supreme Court, “[t]he basis for the discretionary function exception was Congress’ desire to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” Id. As such, the Supreme Court has created a two-step test that governs the applicability of this exception. Terbush, 516 F.3d at 1129. The first step is to determine whether a federal statute, regulation, or policy mandated a specific course of action, or whether the government actor retained an element of judgment or choice" }, { "docid": "22265252", "title": "", "text": "or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b). The FTCA contains several exceptions, however, to this broad waiver of sovereign immunity. Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 1958, 100 L.Ed.2d 531 (1988) (Berkovitz). The discretionary function exception excludes from the purview of the FTCA “[a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). This exception “ ‘marks the boundary between Congress’ willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.’ ” Berkovitz, 108 S.Ct. at 1958, quoting United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 2762, 81 L.Ed.2d 660 (1984) (Varig). Grounded in separation of powers concerns, the discretionary function exception reflects Congress’s “wish[] to pre vent judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” Varig, 467 U.S. at 814, 104 S.Ct. at 2765; see also Begay v. United States, 768 F.2d 1059, 1064 (9th Cir.1985) (Begay). Three important decisions by the Supreme Court have developed the contours of the discretionary function exception: Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953) {Dalehite), Varig, and Berkovitz. Dalehite, the Court's first major decision in this area, involved numerous claims of negligence arising out of a catastrophic explosion of fertilizer containing ammonium nitrate in Texas City, Texas. The fertilizer was manufactured by the United States as part of its post-war effort to increase the food supply in areas under" }, { "docid": "11897697", "title": "", "text": "73 S.Ct. 956, 97 L.Ed. 1427 (1953). The FTCA waives the government’s sovereign immunity for suits against the United States for money damages ... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b)(1). This authorization of suit is subject to several exceptions. Relevant to our case is the so-called discretionary function exception, which “marks the boundary between Congress’ willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.” United States v. Varig Airlines, 467 U.S. 797, 808, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). The United States is immune from suit for any claim “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). The Supreme Court has provided a two-part test to determine “whether the discretionary function exception bars a suit against the Government.” Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). First, we ask whether a “federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.” Id. If so, “the employee has no rightful option but to adhere to the directive,” id., and “[flailure to abide by such [a] directive! ] opens the United States to suit under the FTCA,” Loughlin, 393 F.3d at 163. After all, if there is no element of judgment or choice involved in the employee’s conduct, there is “no discretion ... for the discretionary function exception to protect.” Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954. Second, because the Supreme Court has" }, { "docid": "14088356", "title": "", "text": "claims properly within the scope of the FTCA’s waiver of sovereign immunity in 28 U.S.C. § 2674 are cognizable. Another provision lists the exceptions to FTCA liability, and provides that if one of the exceptions applies, “[t]he provisions of ... section 1346(b) of this title shall not apply.” 28 U.S.C. § 2680. One such exception is the discretionary function exception, which provides that sovereign immunity is not waived for claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). Thus, if the discretionary function exception applies, the jurisdictional grant of section 1346(b) does not, such that “the [government] is completely immune from suit, and the claim must be dismissed for lack of subject matter jurisdiction.” Santoni v. Potter, 369 F.3d 594, 602 (1st Cir.2004) (citing Kelly v. United States, 924 F.2d 355, 360 (1st Cir.1991)). B. The discretionary function exception “marks the boundary between Congress’ willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.” United States v. S.A. Empresa de Viacao Aerea Rio Grandense (“Varig Airlines”), 467 U.S. 797, 808, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). Congress, in enacting the discretionary function exception, intended to “prevent judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” Id. at 814, 104 S.Ct. 2755. In determining whether conduct involves a discretionary function, we first ask whether “the conduct itself [is] discretionary.” Montijo-Reyes v. United States, 436 F.3d 19, 24 (1st Cir.2006) (internal quotation marks omitted); see also Irving v. United States, 162 F.3d 154, 162 (1st Cir.1998) (en banc); Wood v. Unites States, 290 F.3d 29, 36 (1st Cir.2002). To be discretionary, the conduct must involve “an element of judgment or choice.” United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) (quoting Berkovitz v." }, { "docid": "2766761", "title": "", "text": "failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. 28 U.S.C. § 2680(a). The discretionary function exception “marks the boundary between Congress’ willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.” United States v. S.A. Empresa de Viacao Aerea Rio Grándense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 2762, 81 L.Ed.2d 660 (1984). Where the governmental conduct at issue falls within the discretionary function exception, the district court lacks subject matter jurisdiction to hear the suit. Tippett, 108 F.3d at 1196. Whether the exception applies “presents a threshold jurisdictional determination which we review de novo,” Domme v. United States, 61 F.3d 787, 789 (10th Cir.1995), using a two-part test announced in Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). First, we determine whether the governmental conduct at issue “is a matter of choice for the acting employee.” Id. at 536, 108 S.Ct. at 1958. “[Conduct cannot be discretionary unless it involves an element of judgment or choice. Thus, the discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.” Id. (citation omitted). In such a situation, “the employee has no rightful option but to adhere to the directive.” Id. If the conduct at issue involves an element of judgment or choice, Berkovitz requires us to “determine whether that judgment is of the kind that the discretionary function exception was designed to shield.” Id. Congress preserved governmental immunity for discretionary functions to “prevent judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” Id. at 536-37, 108 S.Ct. at 1959. Therefore, the exception “protects only governmental actions and decisions based on considerations of public policy.” Id. at 537,108 S.Ct. at 1959. In this case, plaintiffs do not claim there is" } ]

[ { "docid": "347700", "title": "", "text": "date. In an opinion relying (albeit with caution) on the “general language” of Frady, the Seventh Circuit held that the failure of a prisoner to take an appeal of a constitutional claim that was fully pressed at trial bars relitigation of that claim on a section 2255 motion, absent a showing of cause and prejudice. See Norris v. United States, 687 F.2d 899 (7th Cir.1982). The Second Circuit, by contrast, has interpreted Frady more narrowly, reading it as based on the presence in that case of a specific rule of criminal procedure requiring contemporaneous objection. See United States v. Corsentino, 685 F.2d 48, 50-51 (2d Cir.1982). Thus, in a case involving a section 2255 challenge to a sentence alleged to have been imposed unlawfully after a plea of guilty, the Second Circuit held that the prisoner’s failure to appeal an earlier denial of his rule 35(b) motion based on the same issue did not bar section 2255 relief. Our own circuit has also considered the applicability of Frady to post-trial errors where no rule of criminal procedure requires contemporaneous objection. In United States v. Baylin, 696 F.2d 1030 (3d Cir.1982), we ruled that the failure of a criminal defendant to object to the inclusion of certain material in a pre-sentence investigation report did not bar a challenge on a section 2255 motion to the inclusion of that material. Citing the Second Circuit’s decision in Corsentino, but without the benefit of Judge Posner’s forceful opinion to the contrary, the Baylin panel reasoned that, because section 2255 was the equivalent of a direct appeal on sentencing matters and because the procedural rules concerning sentencing matters are not as well defined as the rules concerning trial procedure, Frady did not apply. Our decision in Baylin concerning the scope of the “cause and prejudice” standard as to section 2255 motions has been echoed in our treatment of section 2254 motions, which accord state prisoners the right to a federal forum in order to assert their federal constitutional claims. In Beaty v. Patton, 700 F.2d 110, 112-13 (3d Cir.1983) (per curiam), we held that Wainwright" } ]

[ { "docid": "22242852", "title": "", "text": "the subject of discussion in the district courts in this circuit. They have raised the issue whether the Sentencing Reform Act’s provisions for evidentiary hearings on sentencing and for direct appeal from sentences imposed after such hearings have implicitly overruled Diggs and Baylin, by removing their twin rationale. Thus, in United States v. Vancol, 778 F.Supp. 219, 225 n. 13 (D.Del.1991), aff'd, 970 F.2d 901 (3d Cir.1992), the court noted that this Court, itself, signaled discomfort with Baylin when it noted, in Diggs, potential shortcomings in some of Baylin’s reasoning. In United States v. Quinones, 1993 WL 273989 (E.D.Pa. June 23, 1993), the district court decided directly that Baylin and Diggs did not survive the Sentencing Reform Act. In Quinones, the defendant attempted to raise objections in a § 2255 proceeding which he had failed to assert at sentencing. After a full discussion of Baylin, Diggs, and Williams, the court in Quinones stated: Baylin and Diggs were decided before the November 1, 1987 implementation of the sentencing guidelines. Since then there have been changes in the Federal Rules of Criminal Procedure which brought about a strict formalization of sentencing by amendments to Fed.R.Crim.P. 32 in 1983 and 1989. Sentences under the new guidelines are now regularly appealed. In the case of a guilty plea, a defendant now must be informed that he has the right to appeal his sentence, Fed.R.Crim.P. 32(a)(2), and in addition, the presentence report must be disclosed and the court must make certain counsel and the defendant had an opportunity to review on [sic] the accuracy of the presentence report at least ten days prior to sentencing. Fed.R.Crim.P. 32(c)(3)(A). The court must make detailed findings concerning matters controverted in the presentence report, Fed.R.Crim.P. 32(c)(3)(D). The district court rule mandated by Sentencing Guideline Section 6A1.1 now requires that objections be made to the guidelines.... Such safeguards for a defendant who admits guilt go well beyond a normal trial situation in which a defendant, who is claiming innocence, fails to object and thereby becomes subject to the Frady standard. Id. at *5 (footnotes omitted). See also United States v." }, { "docid": "11709969", "title": "", "text": "F.2d 866, 869 (4th Cir.1992), cert. denied, — U.S.-, 113 S.Ct. 1342, 122 L.Ed.2d 725 (1993). II In order to proceed on a § 2255 motion “based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) ‘cause’ excusing his procedural default, and (2) ‘actual prejudice’ resulting from the errors of which he complains.” Frady, 456 U.S. at 167-68, 102 S.Ct. at 1594. The government contends that Maybeek has failed to show cause or prejudice for his procedural default. May-beck, however, urges us to follow the approach of the Second Circuit in United States v. Corsentino, 685 F.2d 48, 51 (2d Cir.1982), in which the court reasoned that the circumstances surrounding unappealed guilty pleas are totally different from those presented in Frady. The Second Circuit granted the defendant’s motion to have his sentence .vacated following a guilty plea without imposing the Frady requirements. Although we have not previously ruled on this issue, we now hold that the Frady cause and prejudice standard applies to eases like Maybeck’s: collateral challenges to unappealed guilty pleas. The Third Circuit, considering a similar ease in United States v. Essig, 10 F.3d 968, 979 (3d Cir.1993), reasoned: If defendants could routinely raise, in a § 2255 collateral proceeding, errors in sentencing not raised on direct appeal which the sentencing court had not had an opportunity to correct, Congress’s intent of encouraging direct appellate review of sentences under the Sentencing Guidelines would be frustrated. Moreover, the Federal Rules of Criminal Procedure now plainly set out the procedure that must be used for challenges to presentencing reports and sentencing procedures. See also Reid v. United States, 976 F.2d 446, 447-A8 (8th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1351, 122 L.Ed.2d 732 (1993); Bateman v. United States, 875 F.2d 1304, 1307 (7th Cir.1989); Williams v. United States, 805 F.2d 1301, 1306-07 (7th Cir.1986), cert. denied, 481 U.S. 1039, 107 S.Ct. 1978, 95 L.Ed.2d 818 (1987). Agreeing that this reasoning applies to attacks on sentences following guilty pleas, we find that the Frady cause and prejudice standard applies here. There" }, { "docid": "22242849", "title": "", "text": "In those cases which arose and were decided before the effective date of the Sentencing Reform Act, we held that Frady’s “cause and prejudice” standard does not apply when a defendant raises sentencing errors in a § 2255 petition without first challenging the sentence on direct appeal. Baylin was a tax evader who entered a guilty plea to one count of income tax evasion. The presentence investigation report (“PSI”) mentioned a number of earlier convictions for tax evasion. Baylin did not object. The district court referred to these additional convictions in sentencing. Baylin, 696 F.2d at 1033. The Parole Commission later determined that the defendant would have to serve out most of his term. Id. at 1034. Thereafter, Baylin filed a § 2255 motion in which he challenged, among other things, the inclusion of his earlier convictions in the PSI. Because Baylin failed to object to either the PSI or the sentence, the government argued that he had to meet Frady’s cause and prejudice standard before he could challenge the PSI in a § 2255 proceeding. Id. at 1035. In declining to require a showing of cause and prejudice, the Baylin court distinguished Frady on two grounds: (1) that § 2255 was a functional substitute for a direct appeal of a sentence following a guilty plea, and (2) that a defendant should not be held accountable for not raising objections in a timely fashion because the procedure for objecting to sentencing errors was unclear. Id. at 1036. In Diggs v. United States, 740 F.2d 239 (3d Cir.1984), Diggs failed to appeal the district court’s denial of his Federal Rule of Criminal Procedure 35(b) motion for sentence reduction. Diggs, 740 F.2d at 241. Not until six months after that denial did Diggs, proceeding pro se, file a “motion for rehearing” or, alternately, for relief under § 2255. Id. at 242. We followed Baylin; but recognizing the right to appeal a denial of relief under Federal Rule of Criminal Procedure 35(b) as it then existed, we questioned our conclusion in Baylin that § 2255 was a necessary substitute for the heretofore severely" }, { "docid": "22242850", "title": "", "text": "proceeding. Id. at 1035. In declining to require a showing of cause and prejudice, the Baylin court distinguished Frady on two grounds: (1) that § 2255 was a functional substitute for a direct appeal of a sentence following a guilty plea, and (2) that a defendant should not be held accountable for not raising objections in a timely fashion because the procedure for objecting to sentencing errors was unclear. Id. at 1036. In Diggs v. United States, 740 F.2d 239 (3d Cir.1984), Diggs failed to appeal the district court’s denial of his Federal Rule of Criminal Procedure 35(b) motion for sentence reduction. Diggs, 740 F.2d at 241. Not until six months after that denial did Diggs, proceeding pro se, file a “motion for rehearing” or, alternately, for relief under § 2255. Id. at 242. We followed Baylin; but recognizing the right to appeal a denial of relief under Federal Rule of Criminal Procedure 35(b) as it then existed, we questioned our conclusion in Baylin that § 2255 was a necessary substitute for the heretofore severely restricted right to appeal a sentencing error. Id. at 244. Nevertheless, in considering whether a defendant’s failure to appeal a denial of a Rule 35(b) motion was a procedural default governed by Frady’s cause and prejudice standard, we stated: “We do not see how this case can be meaningfully distinguished from Baylin.’’ Id. at 244. We repeated the observation that “the rules of criminal procedure [in the sentencing phase] are not ... well marked.” The Diggs panel, applying our former Internal Operating Procedure 9.1, found Baylin controlling and refused to apply Frady’s cause and prejudice standard to procedural waiver of sentencing errors first raised in a § 2255 petition, thus continuing to use the “deliberate bypass” standard of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Id. 740 F.2d at 244-45. Our approach in Baylin and Diggs, which was the subject of some criticism even before the Sentencing Reform Act became effective, cannot survive that statute. The question of whether Diggs and Baylin survive the Sentencing Reform Act has been" }, { "docid": "23056980", "title": "", "text": "Govémment makes a threshold argument that Baylin waived his right to object to the presence of information from the United States Attorney’s files in the PSI report when he failed to object prior to sentencing. The Government notes that the PSI report was delivered to Baylin’s counsel two weeks before sentencing, yet Baylin did not object to the contents of the report either in his Memorandum on Sentencing or at the sentencing hearing. Rule 9(a) of the rules governing section 2255 proceedings gives the district court discretion to dismiss a delayed motion for relief “if it appears that the government has been prejudiced in its ability to respond .... ” Since the district court considered Baylin’s claim on the merits, it apparently did not find a waiver of the claim. We cannot say that the court abused its discretion in so deciding. Nor does the Supreme Court’s recent decision in United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), extending its holding in Wain wright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), to section 2255 motions, pose a jurisdictional bar. Frady requires that a defendant attacking a jury instruction for the first time on a section 2255 motion show both cause for his failure to object at trial and actual prejudice deriving from the error alleged. The Court’s concern in Frady was to assure that criminal judgments would not be perpetually open to revision by collateral attack; the Court therefore mandated a more stringent standard for section 2255 motions than is necessary to raise a challenge on direct appeal. We think the Frady rationale is inapplicable to this case for two reasons. First, Baylin here challenges the imposition of a sentence after a guilty plea — a challenge for which a section 2255 proceeding is analogous to a direct appeal. This was not Baylin’s “second appeal,” but his first, and the finality considerations motivating Frady and its predecessors do not apply. United States v. Corsentino, 685 F.2d 48 (2d Cir.1982). Second, sentencing procedures, and especially sentencing hearings, need not conform" }, { "docid": "23650145", "title": "", "text": "102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Frady involved a federal prisoner’s motion under § 2255 to vacate a conviction on the ground of an erroneous jury instruction to which no objection had been made at trial. The Court declined to apply the “plain error” standard of Fed.R.Crim.P. 52(b) in determining whether to reach the merits of the petitioner’s claim, ruling instead that the merits could be reached only if the petitioner’s procedural default in failing to object at trial could be excused under the “cause and prejudice” test of Wainright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), i.e., cause for failure to object and resulting prejudice from the erroneous instruction. We find nothing in the Frady decision altering the traditional scope of § 2255 relief to challenge a sentence alleged to have been imposed unlawfully after a plea of guilty. See Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962) (sentence allegedly imposed in violation of plea bargain); Dugan v. United States, 521 F.2d 231 (5th Cir. 1975) (same). Frady, Sykes, and Sykes’ predecessors, Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), and Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976), concerned the limited scope of collateral attack to raise errors that were required to have been asserted at or before trial by federal or state contemporaneous objection rules. Frady involved an alleged defect in a jury charge that should have been asserted at trial as required by Fed.R.Crim.P. 30. In Davis, an alleged error in the indictment process was required to have been asserted before trial by Fed.R.Crim.P. 12(b)(2). Sykes and Francis involved evidentiary and other challenges required by state procedural rules to be raised at or before trial. Moreover, Frady emphasized that the petitioner had already had an opportunity to present his claims “in federal trial and appellate forums.” - U.S. at -, 102 S.Ct. at 1593 (emphasis added). By contrast, no rule of federal procedure obliges a defendant to make a contemporaneous objection when a" }, { "docid": "23056981", "title": "", "text": "97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), to section 2255 motions, pose a jurisdictional bar. Frady requires that a defendant attacking a jury instruction for the first time on a section 2255 motion show both cause for his failure to object at trial and actual prejudice deriving from the error alleged. The Court’s concern in Frady was to assure that criminal judgments would not be perpetually open to revision by collateral attack; the Court therefore mandated a more stringent standard for section 2255 motions than is necessary to raise a challenge on direct appeal. We think the Frady rationale is inapplicable to this case for two reasons. First, Baylin here challenges the imposition of a sentence after a guilty plea — a challenge for which a section 2255 proceeding is analogous to a direct appeal. This was not Baylin’s “second appeal,” but his first, and the finality considerations motivating Frady and its predecessors do not apply. United States v. Corsentino, 685 F.2d 48 (2d Cir.1982). Second, sentencing procedures, and especially sentencing hearings, need not conform to the procedural requirements that apply during a trial. During trial, the court and opposing parties are justified in expecting litigants to raise their objections at the procedurally correct moment, and in assuming that objections not so raised have been waived. The rules are certainly not so well marked at the sentencing stage of criminal proceedings. For both of the above reasons, we conclude that there was no jurisdictional bar to the district court’s having entertained Baylin’s claim. III. The Alleged Departure from the Parties’ Understandings Regarding Parole Baylin has advanced a variety of contentions in support of his claim that the terms of his incarceration represented a “radical departure” from the parties’ mutual understandings regarding parole and thus violated the plea bargain. He contends that both he and the Government “totally overlooked” the Parole Guidelines in the course of their negotiations; that the Government led him to believe that his parole determination would be “individualized,” which he takes to mean that the Parole Commission would be directed to disregard its own Guidelines; and that" }, { "docid": "347699", "title": "", "text": "of criminal convictions. While in one sense the very existence of section 2255 suggested this interest in finality not to be absolute, that statute was not to be used to eviscerate the “orderly procedures” established by Congress and the courts for the conduct of criminal adjudications. A second factor relied upon by the Frady court was the existence of two rules of criminal procedure. The first, rule 30, requires contemporaneous objection to erroneous jury charges. The second, rule 52(b), “temper[s] the severity of rule 30” by permitting appellate courts to overturn criminal convictions on grounds of “plain error.” It would certainly undercut rule 30 to allow simple error to be raised on a section 2255 motion. The applicability of the Frady “cause and prejudice” standard to procedural defaults occurring outside the paradigmatic instances of failures to object contempora neously to evidentiary rulings or rulings on jury charges has been a subject of dispute in the courts. Judge Posner, writing for a panel of the Seventh Circuit, has taken perhaps the broadest view of Frady to date. In an opinion relying (albeit with caution) on the “general language” of Frady, the Seventh Circuit held that the failure of a prisoner to take an appeal of a constitutional claim that was fully pressed at trial bars relitigation of that claim on a section 2255 motion, absent a showing of cause and prejudice. See Norris v. United States, 687 F.2d 899 (7th Cir.1982). The Second Circuit, by contrast, has interpreted Frady more narrowly, reading it as based on the presence in that case of a specific rule of criminal procedure requiring contemporaneous objection. See United States v. Corsentino, 685 F.2d 48, 50-51 (2d Cir.1982). Thus, in a case involving a section 2255 challenge to a sentence alleged to have been imposed unlawfully after a plea of guilty, the Second Circuit held that the prisoner’s failure to appeal an earlier denial of his rule 35(b) motion based on the same issue did not bar section 2255 relief. Our own circuit has also considered the applicability of Frady to post-trial errors where no rule of" }, { "docid": "9578379", "title": "", "text": "F.2d 1030 (3d Cir. 1982). Both Diggs and Baylin involve errors occurring during sentencing and post-sentencing proceedings. In Diggs, the appeals court based its decision to apply a plain error standard rather than the cause and actual prejudice standard in the sentencing context. Diggs, 740 F.2d at 244 (\"Here ... the error asserted was in sentencing and post-sentencing proceedings, where we have said the rules of criminal procedure are not ... well marked”). Petitioner’s claimed error, which involves pretrial proceedings, is more closely analogous to the facts in Felix than to a challenge of sentencing procedures. When alleged errors occur at or before trial, petitioner has ample opportunity to challenge them during trial and prior to conviction. This is not the case when errors occur during sentencing proceedings. Moreover, when a § 2255 motion challenges trial and pretrial proceedings, finality concerns become more important because the conviction itself— as opposed to the propriety of the sentence — is being challenged. The Supreme Court in Frady emphasized the importance of finality when it formulated the stricter cause and actual prejudice standard: Because it was intended for use on direct appeal, ... the \"plain error” standard is out of place when a prisoner launches a collateral attack against a criminal conviction after society’s legitimate interest in the finality of the judgment has been perfected by the expiration of the time allowed for direct review or by the affirmance of the conviction on appeal.... Our trial and appellate procedures are not so unreliable that we may not afford their completed operation any binding effect beyond the next in a series of endless postconviction collateral attacks. To the contrary, a final judgment commands respect. Frady, 456 U.S. at 164-65, 102 S.Ct. at 1592-93. . In so holding, this Court is supported by the reasoning of two pre-Gomez circuit court decisions in which the courts declined to determine the jurisdiction of magistrates to preside over voir dire on direct appeal because of failure to object below. In United States v. Rivera-Sola, 713 F.2d 866, 874 (1st Cir.1983), the Court of Appeals for the First Circuit" }, { "docid": "9578378", "title": "", "text": "at 2246, and held that it should not be considered a pretrial matter under § 636(b)(1). Id. Thus the magistrate could not conduct voir dire in a felony trial without the consent of the parties. The Court also held that “the carefully defined grant of authority to conduct trials of civil matters and of minor criminal cases should be construed as an implicit withholding of the authority to preside at a felony trial.\" Id. at 2245 (footnote omitted). Thus conducting voir dire does not fall within those matters over which the magistrate is empowered to preside if the parties consent. Hence, after the Court’s decision in Gomez, it appears that the magistrate may not conduct jury voir dire in a felony trial under the statute regardless of whether the parties consent. .In so holding, I do not ignore two decisions of the appellate court declining to apply Frady's cause and actual prejudice standard in § 2255 motions challenging sentencing. See Diggs v. United States, 740 F.2d 239, 244 (3d Cir.1984); United States v. Baylin, 696 F.2d 1030 (3d Cir. 1982). Both Diggs and Baylin involve errors occurring during sentencing and post-sentencing proceedings. In Diggs, the appeals court based its decision to apply a plain error standard rather than the cause and actual prejudice standard in the sentencing context. Diggs, 740 F.2d at 244 (\"Here ... the error asserted was in sentencing and post-sentencing proceedings, where we have said the rules of criminal procedure are not ... well marked”). Petitioner’s claimed error, which involves pretrial proceedings, is more closely analogous to the facts in Felix than to a challenge of sentencing procedures. When alleged errors occur at or before trial, petitioner has ample opportunity to challenge them during trial and prior to conviction. This is not the case when errors occur during sentencing proceedings. Moreover, when a § 2255 motion challenges trial and pretrial proceedings, finality concerns become more important because the conviction itself— as opposed to the propriety of the sentence — is being challenged. The Supreme Court in Frady emphasized the importance of finality when it formulated the stricter" }, { "docid": "20364248", "title": "", "text": "We have recognized that Frady and Davis “carved out a class of constitutional claims” that are not subject to the general rule identified in Schaflander and Kaufman. United States v. Spawn Optical Research, Inc., 864 F.2d 1467, 1471 (9th Cir.1988). However, we have also noted that Frady and Davis by their terms apply only to claims “that run afoul of express waiver provisions.” Id.; see also United States v. Corsentino, 685 F.2d 48, 50 (2d Cir.1982) (“Frady, [Wainwright v. Sykes, and Sykess predecessors, Davis v. United States and Francis v. Henderson, 425 U.S. 586, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976), concerned the limited scope of collateral attack to raise errors that were required to have been asserted at or before trial by federal or state contemporaneous objection rules.”) (citations omitted). Where no procedural rule explicitly requires a constitutional claim to be raised at trial or on direct appeal, “we have ‘not held that the mere failure to raise a constitutional claim on direct review constitutes a procedural default and thus prevents consideration of the issue in a collateral proceeding absent a showing of cause and prejudice.’ ” Chambers v. United States, 22 F.3d 939, 945 (9th Cir.1994) (quoting United States v. O’Mara, 827 F.Supp. 1468, 1472 (C.D.Cal.1993)). To be sure, two of our cases have included language that could be read as suggesting that a procedural default occurs when a defendant fails to avail himself of an opportunity to raise a claim on appeal. See United States v. Dunham, 767 F.2d 1395, 1397 & n. 2 (9th Cir.1985); Abatino v. United States, 750 F.2d 1442, 1445 (9th Cir.1985). However, these cases did not hold that the mere failure to raise a claim on direct review— absent a specific procedural rule which required the defendant to raise it — constitutes a procedural default. In fact, they dealt with precisely the same issue addressed in Fra-dy — whether a petitioner may raise a challenge to an erroneous jury instruction in a § 2255 proceeding, when he failed to object before the jury retired as required by Federal Rule of Criminal Procedure" }, { "docid": "23650146", "title": "", "text": "231 (5th Cir. 1975) (same). Frady, Sykes, and Sykes’ predecessors, Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), and Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976), concerned the limited scope of collateral attack to raise errors that were required to have been asserted at or before trial by federal or state contemporaneous objection rules. Frady involved an alleged defect in a jury charge that should have been asserted at trial as required by Fed.R.Crim.P. 30. In Davis, an alleged error in the indictment process was required to have been asserted before trial by Fed.R.Crim.P. 12(b)(2). Sykes and Francis involved evidentiary and other challenges required by state procedural rules to be raised at or before trial. Moreover, Frady emphasized that the petitioner had already had an opportunity to present his claims “in federal trial and appellate forums.” - U.S. at -, 102 S.Ct. at 1593 (emphasis added). By contrast, no rule of federal procedure obliges a defendant to make a contemporaneous objection when a prosecutor violates the terms of a plea agreement. We do not doubt that in some circumstances the impending violation of a plea agreement may be so clearly anticipated that a defendant’s failure to object to what is about to happen can fairly be taken to be a waiver of compliance with the agreement. But that is not this case. The defendant had no opportunity to object to the prosecutor’s submission of a sentencing memorandum. Arguably an objection could have been interposed as the prosecutor began arguing the circumstances that would warrant a substantial sentence or when the prosecutor expressed opposition to sentencing under § 4205(b). But there was no basis to antici pate either of these occurrences, and it is unlikely that any objection could have remedied the situation. The circumstances are totally unlike those presented by Frady, where a prompt objection to the jury charge was required by Rule 30 and, if made, would have afforded the trial judge an opportunity to give the jury a correct supplemental instruction. Moreover, even if Corsentino, having" }, { "docid": "10909988", "title": "", "text": "following Frady, the cause and prejudice test should now apply to nonconstitutional and nonjurisdictional arguments not raised on direct appeal. See Fiumara v. United States, 727 F.2d 209, 213-14 (2d Cir.) (applying Frady primarily to failure to raise nonconstitutional and nonjurisdictional objection at trial but also noting failure to raise issue on appeal), cert. denied, 466 U.S. 951, 104 S.Ct. 2154, 80 L.Ed.2d 540 (1984). Nevertheless, in the absence of clear direction from the Supreme Court, we are reluctant to treat the cause and prejudice test as if it is “universally applied[,] ... governpng] virtually all questions of procedural default for ... federal prisoners.” Meltzer, supra at 1147; cf. United States v. Corsentino, 685 F.2d 48, 50-51 (2d Cir.1982) (reading Frady narrowly so as not to apply to a challenge of a sentence alleged to have been imposed illegally). In the face of earlier Supreme Court precedent, see, e.g., Stone v. Powell, 428 U.S. at 477 n. 10, 96 S.Ct. at 3044 n. 10, to hold that Frady requires that the cause and prejudice test apply to all nonconstitutional and nonjurisdictional arguments would seemingly constitute an expansion of the availability of collateral review. This would be an anomalous result because Fra-dy and the Supreme Court’s other cause and prejudice decisions were surely not intended to expand the availability of collateral review to those who have failed to raise claims at the first opportunity to do so. See Frady, 456 U.S. at 178, 102 S.Ct. at 1599 (Brennan, J, dissenting) (criticizing the majority’s “further step down this unfortunate path” of “progressive emasculation of collateral review of criminal convictions”); see also Sanchez v. Miller, 792 F.2d 694, 698 (7th Cir.1986) (“underlying policy” of cause and prejudice test is to require prisoners to present claims first to “the forum initially available, primarily because of the costs associated with granting a writ of habeas corpus”), cert. denied, 479 U.S. 1056, 107 S.Ct. 933, 93 L.Ed.2d 984 (1987). We therefore choose to adhere to the traditional rule that nonconstitutional and nonjurisdictional claims are generally procedurally foreclosed to a section 2255 petitioner if not raised on" }, { "docid": "11709968", "title": "", "text": "his sentence on the grounds that he had been improperly sentenced as a career offender and that he had not knowingly and voluntarily entered his guilty plea. The district court ordered a hearing and appointed counsel to represent Maybeek. After the hearing, the magistrate recommended that Maybeek’s § 2255 motion be granted and that his convictions, as well as the dismissals of the other charges, be vacated. On February 24, 1992, the district court declined to accept the magistrate’s' recommendation and dismissed Maybeck’s motion. The court found that Maybeek’s failure to raise his claim that he was sentenced incorrectly as a career offender at his sentencing hearing was a procedural default, and his failure to raise the issue by direct appeal constituted a second procedural default. It ruled that he failed to show cause for these defaults under the rule of United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594-95, 71 L.Ed.2d 816 (1982). Maybeek appeals, and we review the district court’s conclusions of law de novo. United States v. Williams, 977 F.2d 866, 869 (4th Cir.1992), cert. denied, — U.S.-, 113 S.Ct. 1342, 122 L.Ed.2d 725 (1993). II In order to proceed on a § 2255 motion “based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) ‘cause’ excusing his procedural default, and (2) ‘actual prejudice’ resulting from the errors of which he complains.” Frady, 456 U.S. at 167-68, 102 S.Ct. at 1594. The government contends that Maybeek has failed to show cause or prejudice for his procedural default. May-beck, however, urges us to follow the approach of the Second Circuit in United States v. Corsentino, 685 F.2d 48, 51 (2d Cir.1982), in which the court reasoned that the circumstances surrounding unappealed guilty pleas are totally different from those presented in Frady. The Second Circuit granted the defendant’s motion to have his sentence .vacated following a guilty plea without imposing the Frady requirements. Although we have not previously ruled on this issue, we now hold that the Frady cause and prejudice standard applies to eases like Maybeck’s: collateral" }, { "docid": "22242851", "title": "", "text": "restricted right to appeal a sentencing error. Id. at 244. Nevertheless, in considering whether a defendant’s failure to appeal a denial of a Rule 35(b) motion was a procedural default governed by Frady’s cause and prejudice standard, we stated: “We do not see how this case can be meaningfully distinguished from Baylin.’’ Id. at 244. We repeated the observation that “the rules of criminal procedure [in the sentencing phase] are not ... well marked.” The Diggs panel, applying our former Internal Operating Procedure 9.1, found Baylin controlling and refused to apply Frady’s cause and prejudice standard to procedural waiver of sentencing errors first raised in a § 2255 petition, thus continuing to use the “deliberate bypass” standard of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Id. 740 F.2d at 244-45. Our approach in Baylin and Diggs, which was the subject of some criticism even before the Sentencing Reform Act became effective, cannot survive that statute. The question of whether Diggs and Baylin survive the Sentencing Reform Act has been the subject of discussion in the district courts in this circuit. They have raised the issue whether the Sentencing Reform Act’s provisions for evidentiary hearings on sentencing and for direct appeal from sentences imposed after such hearings have implicitly overruled Diggs and Baylin, by removing their twin rationale. Thus, in United States v. Vancol, 778 F.Supp. 219, 225 n. 13 (D.Del.1991), aff'd, 970 F.2d 901 (3d Cir.1992), the court noted that this Court, itself, signaled discomfort with Baylin when it noted, in Diggs, potential shortcomings in some of Baylin’s reasoning. In United States v. Quinones, 1993 WL 273989 (E.D.Pa. June 23, 1993), the district court decided directly that Baylin and Diggs did not survive the Sentencing Reform Act. In Quinones, the defendant attempted to raise objections in a § 2255 proceeding which he had failed to assert at sentencing. After a full discussion of Baylin, Diggs, and Williams, the court in Quinones stated: Baylin and Diggs were decided before the November 1, 1987 implementation of the sentencing guidelines. Since then there have been changes in" }, { "docid": "20364247", "title": "", "text": "direct review. At least as of 1989 (when the petitioners’ convictions became final), we adhered to the rule enunciated in Kaufman, that § 2255 relief “cannot be denied solely on the ground that relief should have been sought by appeal to prisoners alleging constitutional deprivations.” Kaufman, 894 U.S. at 223, 89 S.Ct. at 1072. Under Kaufman, a federal prisoner’s failure to raise a constitutional claim on direct appeal does not constitute a procedural default unless it amounts to a “deliberate by-pass.” Id. at 220 n. 3, 89 S.Ct. at 1071 n. 3.Thus, it has been the general rule in this circuit that “constitutional claims may be raised in collateral proceedings even if the defendant failed to pursue them on appeal.” United States v. Schaflander, 743 F.2d 714, 717 (9th Cir.1984) (per curiam) (citing Davis v. United States, 417 U.S. 333, 345 n. 15, 94 S.Ct. 2298, 2305 n. 15, 41 L.Ed.2d 109 (1974); Marshall v. United States, 576 F.2d 160, 162 (9th Cir.1978)), cert. denied, 470 U.S. 1058, 105 S.Ct. 1772, 84 L.Ed.2d 832 (1985). We have recognized that Frady and Davis “carved out a class of constitutional claims” that are not subject to the general rule identified in Schaflander and Kaufman. United States v. Spawn Optical Research, Inc., 864 F.2d 1467, 1471 (9th Cir.1988). However, we have also noted that Frady and Davis by their terms apply only to claims “that run afoul of express waiver provisions.” Id.; see also United States v. Corsentino, 685 F.2d 48, 50 (2d Cir.1982) (“Frady, [Wainwright v. Sykes, and Sykess predecessors, Davis v. United States and Francis v. Henderson, 425 U.S. 586, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976), concerned the limited scope of collateral attack to raise errors that were required to have been asserted at or before trial by federal or state contemporaneous objection rules.”) (citations omitted). Where no procedural rule explicitly requires a constitutional claim to be raised at trial or on direct appeal, “we have ‘not held that the mere failure to raise a constitutional claim on direct review constitutes a procedural default and thus prevents consideration of the" }, { "docid": "347697", "title": "", "text": "lacked jurisdiction over the Rule 35(b) motion, a complete miscarriage of justice would result. The error would not be one that would be washed out by the course of subsequent trial proceedings. Rather, it would wrongly subject an individual whom the trial court, exercising arguably lawful authority, released from any form of custody, to six and a half years of imprisonment or parole. This is precisely the type of error for which Congress created section 2255. B. Procedural Default As we have noted, Diggs did not appeal the district court’s vacatur of its earlier order granting his rule 35(b) motion. Although we have found no case law precisely on point, we have no doubt that, because Diggs could have appealed an original denial of his rule 35(b) motion for reduction of sentence, see United States v. Dansker, 581 F.2d 69 (3d Cir.1978), he could have appealed the vacatur. Hence, Diggs committed a “procedural default.” The question before us, therefore, is whether this procedural default bars Diggs from collateral relief. United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), stands as a barrier to section 2255 movants asserting errors that could have been raised at trial or on appeal. In that case the Supreme Court extended the rule of Wainright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), which applies to motions by state prisoners under 28 U.S.C. § 2254, to motions by federal prisoners under 28 U.S.C. § 2255. Accordingly, the Court there held that, at least as to errors committed at trial for which a rule of criminal procedure required contemporaneous objection, the failure to make such contemporaneous objection and the failure to assert “plain error” on appeal would bar the assignment of such error as grounds for section 2255 relief, unless cause for the “procedural default” could be shown and unless “actual prejudice” to the defendant could be shown to have resulted. As we read it, Frady rested its use of a “cause and prejudice” standard on two factors. First, of course, was the public interest in the finality" }, { "docid": "22242855", "title": "", "text": "that failure. The procedure for registering objection to errors in a sentencing proceeding is no longer obscure, and § 2255 is no longer a necessary stand-in for the direct appeal of a sentencing error because full review of sentencing errors is now available on direct appeal. See S.Rep. No. 98-225, 98th Cong.2d Sess. 151, reprinted in 1984 U.S.C.C.A.N. 3182, 3334 (“Appellate review of sentences is essential to assure that the guidelines are applied properly....”); see also id. at 155, reprinted in 1984 U.S.C.C.A.N. at 3338 (“The Committee believes that section 3742 creates for the first time a comprehensive system of review of sentences that permits the appellate process to focus attention on those sentences whose review is crucial to the functioning of the sentencing guidelines system, while also providing adequate means for correction of erroneous and clearly unreasonable sentences.”). If defendants could routinely raise, in a § 2255 collateral proceeding, errors in sentencing not raised on direct appeal which the sentencing court had not had an opportunity to correct, Congress’s intent of encouraging direct appellate review of sentences under the Sentencing Guidelines would be frustrated. Moreover, the Federal Rules of Criminal Procedure now plainly set out the procedure that must be used for challenges to presentencing reports and sentencing procedures. See supm note 30. Thus, both of the problems that led to our decisions in Baylin and Diggs have been legislatively removed. Since November 1, 1987, the effective date of the Sentencing Reform Act, defendants have had ample opportunity to raise their sentencing objections in the sentencing court and, if aggrieved by its rulings, to appeal directly. Therefore, we hold Frady’s cause and prejudice standard applies to § 2255 proceedings in which a petitioner seeks relief from alleged errors in connection with his sentence that he has not directly appealed. Essig has not complied with Frady’s cause and prejudice standard. He has, indeed, alleged no cause for his failure to raise his objection before the sentencing court or appeal his sentence on these grounds. “In procedural default cases, the cause standard requires the petitioner to show that ‘some objective factor" }, { "docid": "22242856", "title": "", "text": "review of sentences under the Sentencing Guidelines would be frustrated. Moreover, the Federal Rules of Criminal Procedure now plainly set out the procedure that must be used for challenges to presentencing reports and sentencing procedures. See supm note 30. Thus, both of the problems that led to our decisions in Baylin and Diggs have been legislatively removed. Since November 1, 1987, the effective date of the Sentencing Reform Act, defendants have had ample opportunity to raise their sentencing objections in the sentencing court and, if aggrieved by its rulings, to appeal directly. Therefore, we hold Frady’s cause and prejudice standard applies to § 2255 proceedings in which a petitioner seeks relief from alleged errors in connection with his sentence that he has not directly appealed. Essig has not complied with Frady’s cause and prejudice standard. He has, indeed, alleged no cause for his failure to raise his objection before the sentencing court or appeal his sentence on these grounds. “In procedural default cases, the cause standard requires the petitioner to show that ‘some objective factor external to the defense impeded counsel’s efforts’ to raise the claim.... ” McCleskey, 499 U.S. at 493, 111 S.Ct. at 1470 (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986)). As noted, Essig did not raise any issue of ineffectiveness before the district court in this proceeding. Therefore, even if current counsel meant to assert the ineffectiveness of sentencing counsel provided the cause for such omission, see Murray, 477 U.S. at 488, 106 S.Ct. at 2645 (constitutionally “ineffective assistance of counsel ... is cause”), we think it would be inappropriate to address the issue on this appeal. See supra note 24. VI. For the foregoing reasons, the order of the district court denying Essig’s petition for relief pursuant to 28 U.S.C.A. § 2255 will be affirmed. SUR PETITION FOR REHEARING Jan. 5, 1994. PRESENT: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD, ALITO, ROTH and LEWIS, Circuit Judgfes. The petition for rehearing filed by appellant pro se in the above captioned matter having been submitted" }, { "docid": "23056982", "title": "", "text": "to the procedural requirements that apply during a trial. During trial, the court and opposing parties are justified in expecting litigants to raise their objections at the procedurally correct moment, and in assuming that objections not so raised have been waived. The rules are certainly not so well marked at the sentencing stage of criminal proceedings. For both of the above reasons, we conclude that there was no jurisdictional bar to the district court’s having entertained Baylin’s claim. III. The Alleged Departure from the Parties’ Understandings Regarding Parole Baylin has advanced a variety of contentions in support of his claim that the terms of his incarceration represented a “radical departure” from the parties’ mutual understandings regarding parole and thus violated the plea bargain. He contends that both he and the Government “totally overlooked” the Parole Guidelines in the course of their negotiations; that the Government led him to believe that his parole determination would be “individualized,” which he takes to mean that the Parole Commission would be directed to disregard its own Guidelines; and that he was advised by his counsel that he would serve no more than one-third of any term in excess of one year actually imposed. The district court rejected these contentions, see Baylin I, supra, 531 F.Supp. at 747-53, and we adopt its reasoning as our own. Bay lin further asserts that Rule 11 obliged the district judge, before accepting the plea, to explain the consequences of the Parole Guidelines. The district court correctly rejected this contention. Because of the importance of that issue to the trial judges in this Circuit, we summarize briefly why Rule 11 does not require a judge accepting a plea agreement to explain to the defendant his parole prospects under the Parole Commission Guidelines. Rule 11(c)(1) requires the court to advise a defendant of “the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.” This language generally has been held not to require an explanation of parole consequences. As this court has expressly stated, “[u]nder ordinary circumstances, it should not become necessary for a" } ]

[ { "docid": "1332247", "title": "", "text": "suppressed. United States v. LeBron, 729 F.2d 533 (8th Cir.1984). The government urges us to dismiss Neumann’s challenge to the specificity and execution of the warrant because that issue was first raised on appeal. United States v. Hugh Chalmers Chevrolet-Toyota, Inc., 800 F.2d 737, 738 (8th Cir.1986) (declining consideration of theory of admissibility raised for the first time on appeal). In response, Neumann argues that his challenge to the overbreadth of the warrant was contained in his pretrial motion to suppress on the ground that “the affidavit in support of the search warrant is deficient in probable cause and it fails to establish any possible nexus between the things to be searched for and the places to be searched.” By motion before trial, a criminal defendant is permitted to raise any objection “capable of determination without the trial of the general issue,” but motions to suppress evidence must be raised prior to trial. Fed.R.Crim.P. 12(b). We note, in addition, that such a mandatory pretrial motion to suppress, filed on constitutional grounds in a criminal case, if denied, does not ordinarily have to be renewed by way of objection at trial. The failure to raise an objection which must, under the Rule, be made prior to trial, effects a waiver of the objection. Fed.R.Crim.P. 12(f). The advisory committee’s notes explain the effect of the Rule: Subsection (b)(3) makes clear that objections to evidence on the ground that it was illegally obtained must be raised prior to trial. This is the current rule with regard to evidence obtained as a result of an illegal search. * * * It is also the practice with regard to other forms of illegality such as the use of unconstitutional means to obtain a confession. * * * it seems apparent that the same principle should apply whatever the claimed basis for the application of the exclusionary rule of evidence may be. Fed.R.Crim.P. 12 advisory committee’s note to 1974 Amendments (emphasis added). This court has noted that Rule 12’s procedure for the prompt resolution of evidentiary questions is necessary for the expeditious conduct of criminal trials." } ]

[ { "docid": "7145343", "title": "", "text": "government during a search of Quality’s offices. The court denied the motion as to Crumb, but granted it as to other employees of Quality who had not yet testified. The defendants now contend that the trial court should have stricken Crumb’s testimony or, at a minimum, have conducted a hearing to determine whether the means by which the government located Crumb were tainted by an illegal seizure. We need not reach the merits of the defendants’ contention. Fed.R.Crim.P. 12(b)(3) states that a motion to suppress evidence must be raised prior to trial. Fed.R.Crim.P. 12(f) holds that failure to raise such a motion in a timely manner constitutes a waiver, though “the court for cause may grant relief from the waiver.” We have noted the broad discretion bestowed on a trial court in deciding whether to recognize cause for a failure to make a timely motion. United States v. Echols, 577 F.2d 308, 311 (5th Cir.1978), cert. denied 440 U.S. 939, 99 S.Ct. 1288, 59 L.Ed.2d 499 (1979). In the present case, where Slocum’s counsel presented no justification for his failure to discover the alleged taint prior to trial and the testimony had already been entered into evidence, we are unable to find that the court abused its discretion in declining to grant the defendants’ motion. VII. THE SEARCH OF QUALITY’S OFFICES A. Introduction The government brings a separate appeal alleging that the district court erred in suppressing certain documents discovered during the course of a January 1980 search of Quality’s offices. The suppression of these documents required the government to drop Counts VII and VIII against Bert and Louise Slocum which alleged an illegal double invoicing scheme in violation of 18 U.S.C. § 542. The warrant authorizing' the search of Quality’s offices was based on information contained in an affidavit by Special Agent Michael O’Riorden of the U.S. Customs Service. Paragraph A of Exhibit A of the warrant authorized the seizure of eleven specific categories of business documents; these categories related primarily to particular species of birds and provided dates for relevant transactions involving such birds. Four of the eleven" }, { "docid": "21565140", "title": "", "text": "of district court’s rejection of untimely motion “is limited”). Compare also United States v. Ulloa, 882 F.2d 41, 43 (2d Cir.1989) (failure to make timely motion constitutes waiver of that right even where trial court considers the merits), and United States v. Oldfield, 859 F.2d 392, 396 (6th Cir.1988) (issues raised in untimely motion to suppress are waived on appeal “even though the district court rules on the merits”), with United States v. Vasquez, 858 F.2d 1387, 1389 (9th Cir.1988) (when “district court considers and resolves an untimely suppression motion on its merits, we may review that decision on appeal”), cert. denied, — U.S. -, 109 S.Ct. 847, 102 L.Ed.2d 978 (1989), and United States v. Contreras, 667 F.2d 976, 978 n. 2 (11th Cir.) (merits of suppression motion properly before court of appeals because district court entertained and ruled on merits), cert. denied, 459 U.S. 849, 103 S.Ct. 109, 74 L.Ed.2d 97 (1982). However, we may reach the merits of the suppression issue if the district court committed clear error in denying the defendant’s request to file out of time. See, e.g., United States v. Jones, 619 F.2d 494, 497 (5th Cir.1980) (district court abused its discretion in denying motion to suppress because “[government was not prejudiced by any delay”). Under Rule 12 of the Federal Rules of Criminal Procedure, motions to suppress must be raised prior to trial or by the court-appointed deadline. See Fed.R. Crim.P. 12(b)(3), 12(c). Under Rule 12(f), the failure of the defendant to raise a motion to suppress prior to the time set by the court “shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver” (emphasis added). We have previously declared that a motion under Rule 12(f) “is addressed to the discretion of the district judge and is to be disturbed only for clear error.” United States v. Wertz, 625 F.2d 1128, 1132 (4th Cir.), cert. denied, 449 U.S. 904, 101 S.Ct. 278, 66 L.Ed.2d 136 (1980); see also United States v. Leal, 831 F.2d 7, 10 (1st Cir.1987) (denial of relief under Rule 12(f) may be" }, { "docid": "22085170", "title": "", "text": "to include it in his suppression motion. Federal Rule of Criminal Procedure 12(b)(3) requires a defendant to file a suppression motion prior to trial, and Rule 12(f) provides that failure to do so constitutes a waiver. We agree that Lockett waived the limited consent issue. It is well settled that arguments asserted for the first time on appeal are deemed to be waived and consequently are not susceptible to review in this Court absent exceptional circumstances. See Brown v. Philip Morris, Inc., 250 F.3d 789, 799 (3d Cir.2001); United States v. Martinez-Hidalgo, 993 F.2d 1052, 1057-58 (3d Cir.1993) (finding claim of unreasonable seizure waived when defendant conceded he never filed a motion to suppress in trial court); see also Fed. R. Cmm. P. 12(e) (“[a] party waives any Rule 12(b)(3) defense, objection, or request not raised” prior to trial). As noted by the Advisory Committee to the Rules, “[i]t seems apparent that the same principle should apply whatever the claimed basis for the application of the exclusionary rule of evidence may be.” Fed. R. Ceim. P. 12 advisory committee’s note. Therefore, in the eon-text of a motion to suppress, a defendant must have advanced substantially the same theories of suppression in the district court as he or she seeks to rely upon in this Court. See United States v. Neumann, 887 F.2d 880, 886 (8th Cir.1989) (finding the defendant’s claim on appeal waived because argument that the warrant was overbroad differed from his argument below — that the warrant was deficient in probable cause). Lockett was afforded the opportunity to raise the issue of limited consent before the District Court; however, there he argued that the consent to search was not voluntary. Because “[a] litigant cannot jump from theory to theory like a bee buzzing from flower to flower,” United States v. Torres, 162 F.3d 6, 11 (1st Cir.1998) (finding issue raised on appeal— whether a parent has authority to consent to search a child’s room — waived since different from the issue asserted in the district court — -whether consent was voluntary), Lockett’s claim that Officer Burdette exceeded the" }, { "docid": "23614428", "title": "", "text": "in this case, so we proceed directly to the second step. Jackson avei-s that the judge did not have a substantial basis for concluding that probable cause existed to search his home. In particular, Jackson first argues that much of the affidavit contains uncorroborated testimony from a confidential informant. He next argues that the information contained in the affidavit does not establish a nexus between narcotics and Jackson’s residence. We disagree with both contentions. The affidavit set forth that the confidential informant had proven reliable in the past. Moreover, the confidential informant clearly established a nexus between narcotics and Jackson’s home by describing that Jackson used soft drink vending machines to distribute illegal drugs and that these vending machines were known by the confidential informant to be kept at Jackson’s residence. We thus reject Jackson’s argument and find the search warrant of his home to have been justified by probable cause. 2. Jackson also complains that the government’s warrantless search of his vehicle violated the Fourth Amendment, and that the evidence obtained from the vehicle’s search, specifically a cloned cellular phone, should be suppressed. However, he waived this argument by failing to object in district court to the introduction of the cellular phone on the ground that the search was illegal. See United States v. Chavez-Valencia, 116 F.3d 127, 129 (5th Cir.1997) (holding that failure to raise motion to suppress evidence at the district court waives argument on appeal), cert. denied, — U.S.-, 118 S.Ct. 325, 139 L.Ed.2d 252 (1997); see also Fed. R.Crim.P. 12(b)(3) (requiring that motions to suppress “must” be raised in pre-trial motion). Jackson makes no showing of cause as to why he should be granted relief from the waiver. See Fed.R.Crim.P. 12(f) (noting that failure to raise 12(b)(3) pre-trial motion “shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver”). We therefore decline to reach the merits of his argument. B. Jackson’s second individual basis for appeal is that the district court abused its discretion when it allowed an F.B.I. agent to give expert testimony as to the identification of" }, { "docid": "22739097", "title": "", "text": "the brief does not discuss it in any depth. The brief merely mentions it in conclusory sentences tacked to the end of paragraphs challenging other aspects of the frisk. See, e.g., Appellant’s Br. at 33 (“The seizure of Scroggins’ wallet and information contained in the contents of his wallet further should have been suppressed pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and its progeny.”). There is no citation to or discussion of Terry’s progeny, which includes thousands of cases — many concerning requests for identification — decided over the last 40 years. The issue is accordingly not adequately presented. Even if it were raised on appeal properly, Scroggins also did not properly raise the wallet-search issue in the district court. Federal Rule of Criminal Procedure 12(b)(3)(C) requires that a motion to suppress evidence “must be raised before trial,” and Rule 12(e) states that “[a] party waives any Rule 12(b)(3) defense, objection, request not raised by the deadline the court sets.... ” There is divided authority in the circuits as to “whether arguments not raised in a motion to suppress are waived or are merely forfeited and subject to plain-error review.” United States v. Baker, 538 F.3d 324, 328-29 (5th Cir.2008), cert. denied, — U.S. -, 129 S.Ct. 962, 173 L.Ed.2d 153 (2009). Our circuit follows the former view, holding that “a defendant who fails to make a timely suppression motion cannot raise that claim for the first time on appeal,” and also that “failure to raise specific issues or arguments in pre-trial suppression proceedings operates as a waiver of those issues or arguments for appeal.” United States v. Pope, 467 F.3d 912, 918-19 (5th Cir.2006) (citations omitted). Nonetheless, our cases identifying such waiver have often proceeded to evaluate the issues under a plain error standard for good measure. See Baker, 538 F.3d at 329. Scroggins’s original motion to suppress sought suppression of “the evidence seized from the home and the statements made by Mr. Scroggins subsequent to his arrest,” on the basis of “the warrantless entry into Mr. Scroggins’s home.” At the" }, { "docid": "18762708", "title": "", "text": "of documents which showed that he had been using a false name. The government sought to introduce these documents as evidence of flight and concealment to establish consciousness of guilt. The defendant argued that this evidence should not have been admitted because the government had not established that the items were seized pursuant to a search warrant, a lawful arrest or the defendant’s consent. The court denied this motion, reasoning that motions to suppress should be raised before trial pursuant to Fed.R. Crim.P. 12(b)(3). On appeal, the defendant argues at length that this evidence was inadmissible because the government had not established that the items were seized during the course of a lawful arrest, but does not address Rule 12(b)(3) or even the propriety of thé district court’s ruling on his motion. Federal Rule of Criminal Procedure 12(b) provides in part: (b) Pretrial Motions. ... The following must be raised prior to trial: (3) Motions to suppress evidence.... (Emphasis added). The failure to timely file a motion to suppress evidence “shall constitute waiver thereof, unless the court grants relief from the waiver.” United States v. Worthington, 698 F.2d 820, 824 (6th Cir.1983). See also Fed.R.Crim.P. 12(f); United States v. Schwartz, 535 F.2d 160, 163 (2d Cir.1976), cert. denied, 430 U.S. 906, 97 S.Ct. 1175, 51 L.Ed.2d 581 (1977); United States v. Wood, 609 F.2d 246, 248 (6th Cir.1979) (per curiam) (“We cannot properly speculate now as to what would have been developed at the suppression hearing if the motion had been made and the hearing had been held.”); United States v. Mangieri, 694 F.2d 1270, 1282 (D.C.Cir.1982) (failure to file pretrial motion to suppress at the time designated by the trial court constituted waiver). Further, if a party fails to timely file a Rule 12(b) motion, the merits of the motion are not preserved for appeal even if the district court chose to hear the motion; the district court’s review of the motion “does not alter the fact that the motion to suppress was made in violation of Fed.R.Crim.P. 12(b)(3), nor does it alter the fact that defendant waived the" }, { "docid": "15452464", "title": "", "text": "did not have probable cause to stop his vehicle, and, therefore, all evidence found as a result of this stop must be suppressed. Chavez, however, failed to raise this claim in a pretrial motion, as required by Fed.R.Crim.P. 12(b)(3) and 12(f). He also failed to raise the issue at anytime during the trial. Nonetheless, Chavez maintains that he may raise his suppression claim for the first time on appeal. The government contends the defendant’s failure to raise properly his suppression claim at trial constituted a waiver and bars the issue on appeal. We find that the plain language of Rules 12(b)(3) and 12(f), the history of the rules relating to motions to suppress, the relevant Fifth Circuit case law and sound policy considerations all dictate that the failure to raise a suppression issue at trial forecloses a defendant from raising the issue for the first time on appeal. Ill Rule 12(b)(3) requires that motions to suppress evidence “must” be raised before trial. Rule 12(f) provides that failing to raise a 12(b)(3) motion prior to trial “shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver.” Fed. R.Crim.P. 12(f)(emphasis added). We have held that once a right is waived at trial, it may not be resurrected on appeal. See Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1418 (5th Cir.1996) (en banc); United States v. Calverley, 37 F.3d 160, 162 (5th Cir.1994), cert. denied, 513 U.S. 1196, 115 S.Ct. 1266, 131 L.Ed.2d 145 (1995); see also, United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993). Therefore, if the words used in Rules 12(b)(3) and 12(f), particularly the word “waiver,” are to be given their generally accepted meaning, a defendant who fails to present a timely pretrial motion to suppress evidence is foreclosed from raising the issue on appeal. Normally, our analysis would stop here with the unmistakable language of the rule, except for a sort of definitional paradox. The term waiver ordinarily suggests the intentional relinquishment or abandonment of a known right. See, e.g., Calverley, 37 F.3d" }, { "docid": "15452475", "title": "", "text": "that a motion to suppress evidence must be made before trial and failure to make such a motion constitutes waiver.... The lawfulness of the seizures is therefore not available for consideration on appeal” (internal citations omitted)). United States v. Randolph, 27 F.3d 564 (4th Cir.)(failure to raise timely pretrial suppression motion resulted in waiver), cert. denied, 513 U.S. 942, 115 S.Ct. 349, 130 L.Ed.2d 305 (1996); United States v. Badwan, 624 F.2d 1228, 1231 (4th Cir.1980)(same). United States v. Vincent, 20 F.3d 229, 234 (6th Cir.1994)(applying plain error standards to a claim that was raised for the first time on appeal, but refusing to consider a suppression issue that was not raised below: “under Federal Rule of Criminal Procedure 12(b)(3), defendant was required to raise suppression issues prior to trial, and because failure to do so constituted a waiver of this claim, Fed.R.Crim.P. 12(f), we are precluded from considering his claim on appeal.”); United States v. Obiukwu, 17 F.3d 816, 819 (6th Cir.1994)(holding that fail ure to file a timely suppression motion constitutes waiver, and therefore refusing to address merits of claim); but see, United States v. Buchanon, 72 F.3d 1217 (6th Cir.1995)(noting that although a defendant did raise a suppression issue because he did not argue it with sufficient specificity it was “forfeited”; nevertheless, the court applies plain error review, citing Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508). United States v. Kimberlin, 805 F.2d 210 (7th Cir.1986)(refusing to rule on the merits of a Rule 12(b)(2) motion, noting the right to raise the issue was waived when defendant failed to file pretrial motion); but see, United States v. Wesson, 33 F.3d 788, 794 (7th Cir.1994)(not-ing that plain error is to be applied when a defendant fails to raise a suppression issue prior to trial), cert. denied, Steele v. United States, 513 U.S. 1100, 115 S.Ct. 773, 130 L.Ed.2d 668 (1995). United States v. Moore, 98 F.3d 347, 351 (8th Cir.1996) (court applies plain error standard, however, the case is ambiguous, and it is possible that the defendants argued the suppression issue at trial). United States v." }, { "docid": "22784803", "title": "", "text": "F.3d 92, 104 (1st Cir.2006) (\"We interpret the mandatory language of Rule 12 broadly to include waiver when a defendant fails to file a motion to suppress before trial, and have even extended waiver to a situation where a suppression motion was filed, but the defendant did not include a particular ground and wished to add it later.”), and United States v. Abboud, 438 F.3d 554, 567-68 (6th Cir.2006) (“A motion to suppress evidence must be made before trial. If a defendant does not make such a motion, he waives the claim.” (internal citations omitted)). In addition, some courts have applied plain error review in this context without explicitly stating whether the argument was forfeited or waived. See, e.g., United States v. Stevens, 487 F.3d 232, 242 (5th Cir.2007) (“Because Raul Stevens raises his Miranda-based argument for the suppression of his statement of consent for the first time on appeal, we review for plain error.”); United States v. Young, 350 F.3d 1302, 1305 (11th Cir.2003) (“Young never asserted this theory in his own motion to suppress. Accordingly, we review the district court’s ruling for plain error.”). . 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). . 467 F.3d 912, 918-19 (5th Cir.2006) (\"We have held that [a] 'defendant who fails to make a timely suppression motion cannot raise that claim for the first time on appeal.’ We have also held that failure to raise specific issues or arguments in pre-trial suppression proceedings operates as a waiver of those issues or arguments for appeal.”) (quoting United States v. Chavez-Valencia, 116 F.3d 127, 130 (5th Cir.1997) and citing United States v. Harrelson, 705 F.2d 733, 738 (5th Cir.1983)). . Pope, 467 F.3d at 919-20. . Id. at 920 n. 20 (\"Even were we to regard Pope's argument as merely forfeited and subject the district court's decision to plain error review, we would find no such error.”). . 42 F.3d 906, 913 (5th Cir.1995) (”[I]t is far from clear that there was error. But, even assuming error, it was not 'plain'.”). . Fed.R.Evid. 803(8)(B) (\"The following are not excluded by the" }, { "docid": "15452476", "title": "", "text": "therefore refusing to address merits of claim); but see, United States v. Buchanon, 72 F.3d 1217 (6th Cir.1995)(noting that although a defendant did raise a suppression issue because he did not argue it with sufficient specificity it was “forfeited”; nevertheless, the court applies plain error review, citing Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508). United States v. Kimberlin, 805 F.2d 210 (7th Cir.1986)(refusing to rule on the merits of a Rule 12(b)(2) motion, noting the right to raise the issue was waived when defendant failed to file pretrial motion); but see, United States v. Wesson, 33 F.3d 788, 794 (7th Cir.1994)(not-ing that plain error is to be applied when a defendant fails to raise a suppression issue prior to trial), cert. denied, Steele v. United States, 513 U.S. 1100, 115 S.Ct. 773, 130 L.Ed.2d 668 (1995). United States v. Moore, 98 F.3d 347, 351 (8th Cir.1996) (court applies plain error standard, however, the case is ambiguous, and it is possible that the defendants argued the suppression issue at trial). United States v. Restrepo-Rua, 815 F.2d 1327, 1329 (9th Cir.1987)(failing to reach the merits of a defendant’s argument, noting “[j]ust as a failure to file a timely motion to suppress evidence constitutes a waiver, so too does a failure to raise a particular ground”); United States v. Hernandez-Ochoa, 50 F.3d 17 (9th Cir.1995)(defendant failed to preserve suppression issue for appeal by failing to object in a pretrial motion). United States v. Dirden, 38 F.3d 1131, 1139 n. 10 (10th Cir.1994) (refusing to hear a suppression claim, even though a pretrial suppression motion considered other issues); United States v. Uribe-Galindo, 990 F.2d 522, 525 (10th Cir.1993)(refusing to address merits of suppression issue, noting the failure to raise timely objection to suppression issue constitutes waiver); but see, United States v. Dewitt, 946 F.2d 1497, 1502 (10th Cir.1991)(holding that waiver applies when defendant failed to include particular arguments in his pretrial suppression motion, but also noting that “defendant has not attempted to demonstrate plain error”). Ford, 34 F.3d at 994 n. 2 (refusing to hear a defendant’s suppression motion, noting that" }, { "docid": "20205865", "title": "", "text": "declares that a party waives any Rule 12(b)(3) “objection” not raised by the court’s pretrial deadline. Fed.R.Crim.P. 12(e). Rule 12(b)(3) sought to make “clear that objections to evidence on the ground that it was illegally, obtained must be raised prior to trial.” Fed.R.Crim.P. 12 advisory committee’s note on 1974 amendment. Although Green filed a pretrial motion to suppress, he did not urge that Growney made a de facto arrest or that the officer conducted an illegal search when he touched Green’s chest. Thus, the government had no reason to justify the officer’s actions that Green now challenges on appeal, and the district court had no occasion to address the issues. Absent a showing of good cause, the arguments that Green seeks to raise for the first time on appeal are waived under Rule 12(e). We discern no “good cause” that warrants relief from the waiver in this case. The evidence regarding Growney’s touching of Green’s chest was adduced at the suppression hearing. While belated discovery of disputed evidence might explain a defendant’s failure to raise an issue in his initial motion to suppress, it cannot establish “good cause” for his failure to raise it after the hearing but before trial. See Rose, 538 F.3d at 184-85. Nor does the fact that Green was proceeding pro se for a portion of the pretrial period excuse his noncompliance with Rule 12. The right of self-representation is not “a license not to comply with relevant rules of procedural and substantive law,” Faretta v. California, 422 U.S. 806, 884 n. 46, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and Green’s pro se status alone does not constitute good cause. See Rose, 538 F.3d at 184-85. For these reasons, we hold that Green’s remaining arguments for suppression of evidence are waived. III. Green next challenges his 96-month sentence on procedural and substantive grounds. In considering assertions of procedural error, we review the district court’s application of the guidelines de novo and its factual findings for clear error. United States v. Paz, 622 F.3d 890, 891 (8th Cir.2010). We review the substantive reasonableness of a sentence" }, { "docid": "20205864", "title": "", "text": "suppress be raised prior to trial in accordance with the district court’s desired timetable.” Id. Well after Olano, the waiver provision was moved to subsection (e) of Rule 12, and the text was revised, but the waiver provision remained intact. See Fed.R.Crim.P. 12 advisory committee’s note on 2002 amendments. “Had the drafters thought that term outdated in light of Olano or other precedent, they could have changed the term to ‘forfeiture,’ but they did not.” Rose, 538 F.3d at 183. In our case, Green did file a motion to suppress, but the mere filing of a motion is not sufficient to avoid waiver of specific arguments that are advanced for the first time on appeal. The Rule 12 “waiver provision ‘applies not only to the failure to make a pretrial motion, but also to the failure to include a particular argument in the motion.’ ” Spotted Elk, 548 F.3d at 656 (quoting United States v. Barajas-Chavez, 358 F.3d 1263, 1266-67 (10th Cir.2004)); accord Burke, 633 F.3d at 991; Rose, 538 F.3d at 182. The rule declares that a party waives any Rule 12(b)(3) “objection” not raised by the court’s pretrial deadline. Fed.R.Crim.P. 12(e). Rule 12(b)(3) sought to make “clear that objections to evidence on the ground that it was illegally, obtained must be raised prior to trial.” Fed.R.Crim.P. 12 advisory committee’s note on 1974 amendment. Although Green filed a pretrial motion to suppress, he did not urge that Growney made a de facto arrest or that the officer conducted an illegal search when he touched Green’s chest. Thus, the government had no reason to justify the officer’s actions that Green now challenges on appeal, and the district court had no occasion to address the issues. Absent a showing of good cause, the arguments that Green seeks to raise for the first time on appeal are waived under Rule 12(e). We discern no “good cause” that warrants relief from the waiver in this case. The evidence regarding Growney’s touching of Green’s chest was adduced at the suppression hearing. While belated discovery of disputed evidence might explain a defendant’s failure to raise" }, { "docid": "22156188", "title": "", "text": "to hearing the arresting officer’s testimony he believed he had been arrested inside his apartment. Motions to suppress are governed by Fed.R.Crim.P. 12(b) and 12(f). Rule 12(b)(3) requires counsel to raise motions to suppress before trial. According to Rule 12(f), failure timely to raise defenses, objections, or requests that must be made before trial constitutes their waiver. Relief from waiver may be granted in the sound discretion of the trial judge. See United States v. Mauro, 507 F.2d 802, 805-07 (2d Cir.), cert. denied, 420 U.S. 991, 95 S.Ct. 1426, 43 L.Ed.2d 672 (1975). Judge Pollack’s refusal to grant Thomas relief from his waiver was not an abuse of discretion. Thomas knew that the search was warrantless and had arguably gone beyond that allowed incident to arrest (not all items seized were in plain view). The trial court could have found that Thomas had enough information before trial upon which to base an objection to admission of the evidence. Judge Pollack might also have properly reasoned that Thomas should have sought information about the search prior to trial, instead of waiting to cross-examine the arresting officer. For these reasons we decline to disturb the denial of Thomas’ motion to suppress. ■IV. TRIAL CONDUCTED ON MUHAMMED’S SABBATH DAY Ishmael Muhammed claims that the district court’s decision to conduct trial on Fridays violated his First Amendment right to the free exercise of religion. Mu-hammed — a Muslim, who observes his Sabbath from sundown on Thursday to sundown on Friday — requested that his trial not be conducted on Fridays. In a memorandum opinion dated October 4, 1983 Judge Pollack denied that request. See United States v. Fisher, 571 F.Supp. 1236 (S.D.N.Y.1983). Muhammed did not appeal this decision, and attended the Friday sessions of his trial. As the trial is complete, reversal of his conviction would not remedy the claimed infringement of defendant’s rights and this issue is therefore inappropriately raised on this appeal. The time for Muhammed to have appealed the decision to hold trial on Fridays was immediately after the trial court entered its order. Although, as the Supreme Court recently" }, { "docid": "6580145", "title": "", "text": "v. Hamm, 786 F.2d 804, 806 (7th Cir.1986) (citing United States v. Mangieri, 694 F.2d 1270, 1283 (D.C.Cir.1982)). Pursuant to Fed.R.Crim.P. 12(b)(3), a motion to suppress evidence must be raised before trial: “Rule 12. Pleadings and Motions Before Trial (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: sic $ ‡ sje $ jjc Motions to suppress evidence____” (Emphasis added). Absent an extension of time set by the court at arraignment for the filing of pretrial motions, the failure to file a motion to suppress by the date set shall constitute waiver of the opportunity to file the motion. See Fed.R.Crim.P. 12(f). Because the defendant did not file his motion to suppress until the morning of the trial, the issue is deemed waived. Even if the trial judge had considered the motion on the merits, we are convinced that the motion to suppress the marijuana would have been denied because the defendant specifically consented to the search of the vehicle. Trooper Trautvetter testified at trial that he asked the defendant three separate times whether he could search the vehicle, and that each time the defendant replied, “Sure.” Trautvetter also received the defendant’s consent before removing the spare tires from their rims. Thus, we are of the opinion that Moralez voluntarily consented to the search of the vehicle. See United States v. Talkington, 875 F.2d 591, 594 (7th Cir.1989) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). The district court’s denial of the defendant’s motion to suppress the evidence as untimely was not clearly erroneous. C. Improper Argument The defendant argues that the prosecutor’s references in closing argument to “Mr. Moralez’s vehicle,” “Mr. Moralez’s car,” and “Mr. Moralez’s Blazer” were improper because there was no evidence in the record that the defendant was the owner of the vehicle. As a result, the defendant contends that the improper" }, { "docid": "23234739", "title": "", "text": "attorney, who stated that he would accept receipt of the warrant on behalf of his clients. The return and inventory indicate execution of the warrant and inventory of the suitcases on November 29, 1979, although the suitcases were not in fact inventoried until November 30, 1979. Appellants do not contend that probable cause was lacking for the issuance of the warrant or that there was no warrant at the time the search was conducted. Rather, they argue that, because of technical violations of Fed.R.Crim.P. 41(d), the motion to suppress should have been granted. Appellants did not make a pre-trial motion to suppress the evidence of the suit cases as required by Fed.R.Crim.P. 12(b) and first raised this motion at trial. Under Rule 12(f) this waived the issue, and the district court would not have abused its discretion under Rule 12(f) if it had denied the motion solely on the ground of appellants’ non-compliance with pre-trial procedure. United States v. Bullock, 590 F.2d 117, 120 (5th Cir. 1979); United States v. Hare, 589 F.2d 242, 243 (5th Cir. 1979); United States v. Echols, 577 F.2d 308, 311 (5th Cir. 1977). However, the district court did not rely solely on appellants’ pre-trial omission, but rather heard argument on the motion to suppress. We thus consider the merits of the trial court’s ruling. See United States v. Bullock, supra, 590 F.2d at 120-21. We conclude that the district court properly denied the motion. Violations of Rule 41(d) are essentially ministerial in nature and a motion to suppress should be granted only when the defendant demonstrates legal prejudice or that non-compliance with the rule was intentional or in bad faith. United States v. Diecidue, 603 F.2d 535, 562 (5th Cir. 1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 781 (1980); United States v. Wilson, 451 F.2d 209, 214 (5th Cir. 1971), cert. denied, 405 U.S. 1032, 92 S.Ct. 1298, 31 L.Ed.2d 490 (1972); United States v. Dauphinee, 538 F.2d 1, 3 (1st Cir. 1976); United States v. McKenzie, 446 F.2d 949, 954 (6th Cir. 1971). Failure to deliver a copy of" }, { "docid": "23471777", "title": "", "text": "properly found to be admissible. Accordingly, we conclude that the district court was correct in admitting all evidence discovered through the stop of Basey’s car, his arrest, and the vehicle search. 2. Admissibility of Evidence Associated with the Abandoned Van On appeal, Basey contends that the van was discovered solely because of his improper stop and arrest, and that the marihuana and radios found therein are therefore tainted and should have been suppressed. As noted above, however, Basey did not mention the van or its contents in his pretrial suppression motion, although he did object to the admission of this evidence at trial. Motions to suppress evidence “must be raised prior to trial,” Fed. R.Crim.P. 12(b), 12(b)(3), and a failure to raise such a motion in a timely manner constitutes a waiver of objection, Rule 12(f). Basey did not ask the court to conduct a suppression hearing on this issue. Finding that no miscarriage of justice resulted from the admission of this evidence, we will not consider the merits of this issue not properly raised below. See United States v. Harrelson, 705 F.2d 733, 738 (5th Cir.1983). 3. Admissibility of Basey’s Statements to Agent Pena Basey was arrested on the night of September 5. He was first questioned by Bur-net County Sheriff’s Department Officer Simpson about fifteen hours later, on September 6, after Basey was arraigned before a state magistrate that morning on state drug charges. Officer Simpson testified at the suppression hearing that Basey initially insisted that he would not give any information at all unless he were promised help. Later that day, Simpson again met with Basey, this time joined by DPS investigator Nesteroff. The district court concluded that, at some time during these sessions, Simpson indicated he would help Basey with the charges then facing him if Basey offered information about the drug trafficking organization. Later that same evening, Basey was questioned again, this time by DEA Agent Pena, who at the outset of the interview advised Basey of his Miranda rights and told Basey that he would make no specific promises of help but would inform" }, { "docid": "1340490", "title": "", "text": "where the defendant never filed a motion to suppress in the district court, we held that he “waived” his argument of unreasonable seizure on appeal, 993 F.2d at 1057-58 (citing Frank, 864 F.2d at 1006), even though the Government suggested that we review the argument for plain error, see Brief for the Appellee, Martinez-Hidalgo, 993 F.2d 1052 (No. 92-7574), 1993 WL 13121408 (unnumbered page at beginning). We most fully explained the propriety of a waiver approach in Lockett, 406 F.3d at 212. We held that the defendant waived his argument on appeal that his consent to a certain search was limited, as that argument before the district court addressed a different issue. Id, In doing so, we noted that “[i]t is well settled that arguments asserted for the first time on appeal are deemed to be waived and consequently are not susceptible to review in this Court absent exceptional circumstances.” Id. We reasoned that “Federal Rule of Criminal Procedure 12(b)(3) requires a defendant to file a suppression motion prior to trial, and Rule 12(f) provides that failure to do so constitutes a waiver.” Id. It followed from this Rule, we reasoned, that, “in the context of a motion to suppress, a defendant must have advanced substantially the same theories of suppression in the district court as he or she seeks to rely upon in this Court” — in other words, a “ ‘litigant cannot jump from theory to theory like a bee buzzing from flower to flower.’ ” Id. (quoting United States v. Torres, 162 F.3d 6, 11 (1st Cir.1998)). Thus we concluded that the defendant’s limited-consent argument was waived. Id. By contrast, we have occasionally applied plain error review to suppression issues raised for the first time on appeal. In none of these cases, however, did a party suggest in briefing that we hold the issues to be waived. In Martinez-Zayas, we considered a defendant’s claim, raised for the first time on appeal, that a warrant issued by a nonlawyer and nonjudge bail commissioner was invalid under Federal Rule of Criminal Procedure 41(a). 857 F.2d at 133-34. Though the" }, { "docid": "23614429", "title": "", "text": "search, specifically a cloned cellular phone, should be suppressed. However, he waived this argument by failing to object in district court to the introduction of the cellular phone on the ground that the search was illegal. See United States v. Chavez-Valencia, 116 F.3d 127, 129 (5th Cir.1997) (holding that failure to raise motion to suppress evidence at the district court waives argument on appeal), cert. denied, — U.S.-, 118 S.Ct. 325, 139 L.Ed.2d 252 (1997); see also Fed. R.Crim.P. 12(b)(3) (requiring that motions to suppress “must” be raised in pre-trial motion). Jackson makes no showing of cause as to why he should be granted relief from the waiver. See Fed.R.Crim.P. 12(f) (noting that failure to raise 12(b)(3) pre-trial motion “shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver”). We therefore decline to reach the merits of his argument. B. Jackson’s second individual basis for appeal is that the district court abused its discretion when it allowed an F.B.I. agent to give expert testimony as to the identification of voices recorded by wire tapping telephone calls to and from co-defendant Lampton. Driving this objection are the complaints that the prosecution admitted it had misidentified some of the parties on these phone calls, and that the F.B.I. used regular agents to make the identifications rather than using the voice identification experts it has on staff. Jackson concludes that the district court could have cured these problems by granting his motion to sever his trial from that of Lamp-ton, and that the district court’s refusal to do so was an abuse of discretion. Fed. R. Evid. 901(b)(5) provides that “[identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, [can be testified to] by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.” Here, an F.B.I. agent testified that she had heard Jackson’s voice in prior personal contact with him. This is sufficient to meet the requirements of Rule 901(b)(5). See, e.g., United States v. Cuesta, 597 F.2d 903, 915 (5th Cir.1979) (holding" }, { "docid": "22453924", "title": "", "text": "has been waived within the meaning of Rule 12(e). The Government argues that Medina’s waiver under Rule 12(e) bars our review even for plain error under Fed.R.Crim.P. 52(b). When faced with a defendant’s complete failure to file a pretrial suppression motion, we have held that “we are categorically without jurisdiction to hear appeals of suppression issues raised for the first time on appeal.” United States v. Crismon, 905 F.2d 966, 969 (6th Cir.1990). On the other hand, we have applied Rule 52(b)’s plain error review to new suppression arguments raised for the first time on appeal after a defendant’s original suppression arguments proved unsuccessful at the trial court level. See Critton, 43 F.3d at 1094. Regardless of whether a Rule 12(e) waiver precludes plain error review under Rule 52(b), it is clear that Medina’s arguments would not prevail under plain error review. The plain error doctrine is to be used only in exceptional circumstances to avoid a miscarriage of justice. Critton, 43 F.3d at 1094. An error is plain when it is obvious, affects substantial rights, and seriously affects the fairness or integrity of judicial proceedings. Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). We conclude that the district court committed no obvious error in denying Medina’s suppression motion. Evidence obtained from a search may be inadmissible if the consent to search was obtained from an individual seized in violation of his or her Fourth Amendment rights. United States v. Lopez-Arias, 344 F.3d 623, 628-29 (6th Cir.2003). When an individual consents to a search subsequent to an illegal seizure, the evidence obtained must be excluded unless “the consent is sufficiently attenuated from the illegal seizure such that the consent is the product of an intervening act of free will.” Id. at 629. A “seizure” occurs when police detain an individual under circumstances where a reasonable person would not feel free to leave. United States v. Obasa, 15 F.3d 603, 606 (6th Cir.1994). If a seizure involves only a brief investigatory detention and frisk, the officers need only have a reasonable suspicion of criminal" }, { "docid": "15452474", "title": "", "text": "pretrial suppression motion, will have another bite at the apple.” United States v. Brown, 663 F.2d 229, 238 (D.C.Cir.1981)(en banc)(Wiley, J. concurring). VII Finally, our holding today is consistent with a majority of other circuits that have addressed this question, notwithstanding some intra-circuit conflicts that will be noted below: United States v. McDowell, 918 F.2d 1004, 1009 (1st Cir.1990) (failure to file pretrial suppression motion resulted in waiver, and therefore merits will not be considered on appeal); see also, United States v. Nunez, 19 F.3d 719, n. 10 (1st Cir.1994)(commenting “[f]ew courts have squarely considered whether a Rule 12(f) waiver obviates ‘plain error’ review under Rule 52(b). A number of courts have proceeded with ‘plain error’ review, however, without discussing the impact of Rule 12(f) waiver.... In any event, our precedent does not require ‘plain error’ review in circumstances where reliable review has been rendered impossible by inadequate development at the district court level_”). United States v. Ulloa, 882 F.2d 41, 43 (2d Cir.1989) (“The Federal Rules of Criminal Procedure and our eases make clear that a motion to suppress evidence must be made before trial and failure to make such a motion constitutes waiver.... The lawfulness of the seizures is therefore not available for consideration on appeal” (internal citations omitted)). United States v. Randolph, 27 F.3d 564 (4th Cir.)(failure to raise timely pretrial suppression motion resulted in waiver), cert. denied, 513 U.S. 942, 115 S.Ct. 349, 130 L.Ed.2d 305 (1996); United States v. Badwan, 624 F.2d 1228, 1231 (4th Cir.1980)(same). United States v. Vincent, 20 F.3d 229, 234 (6th Cir.1994)(applying plain error standards to a claim that was raised for the first time on appeal, but refusing to consider a suppression issue that was not raised below: “under Federal Rule of Criminal Procedure 12(b)(3), defendant was required to raise suppression issues prior to trial, and because failure to do so constituted a waiver of this claim, Fed.R.Crim.P. 12(f), we are precluded from considering his claim on appeal.”); United States v. Obiukwu, 17 F.3d 816, 819 (6th Cir.1994)(holding that fail ure to file a timely suppression motion constitutes waiver, and" } ]

[ { "docid": "23527184", "title": "", "text": "from her family physician and a number of specialists, and takes a variety of prescription medications, including Inderal for hypertension, Midrin for headaches, Tolectin for arthritis, and Darvocet and Fiorinal 3 for muscle spasms. Tr. 344. The AU acknowledges “that a preponderance of the evidence shows that the claimant does experience some aches, pain and balance problems, and that certain activities aggravate these conditions.” Tr. 201. He also acknowledges that “[tjhere has been some indication that she may convert psychological distress into somatic complaints.” Id. Nevertheless, the AU chooses to form his own conclusions about the severity of Mrs. Easter’s problems, disregarding Dr. Preston’s opinion, and focusing on Mrs. Easter’s participation in modest activities such as watching television, receiving visitors, and caring for pets, and his observations that she did not manifest significant pain during her hearings. As the AU himself notes, “the observations of an Administrative Law Judge of the claimant at a hearing cannot form the [sole] basis for rejection of the allegations of pain ...” Id. See, e.g., Lanning v. Heckler, 777 F.2d 1316, 1317 (8th Cir.1985). Moreover, an applicant need not be completely bedridden or unable to perform any household chores to be considered disabled. See Yawitz v. Weinberger, 498 F.2d 966, 960 (8th Cir.1974). What counts is the ability to perform as required on a daily basis in the “sometimes competitive and stressful” environment of the working world. Douglas v. Bowen, 836 F.2d 392, 396 (8th Cir.1987) (quoting McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir.1982) (en banc)). Judge Stuart, in the first District Court opinion in Mrs. Easter’s case, reminded the Secretary of our statement in Rhines v. Harris, 634 F.2d 1076, 1079 (8th Cir.1980), that “[e]mployers are concerned with substantial capacity, psychological stability, and steady attendance.... It is unrealistic to think that they would hire anyone with the impairments of this plaintiff.” No. 84-591-A, slip op. at 2 (S.D.Iowa, Sept. 30, 1985). The AU cites the opinion of Dr. Melha-do, who has conducted a battery of tests on Mrs. Easter, over that of Dr. Preston. Generally, a consulting physician’s opinions are not" } ]

[ { "docid": "21545970", "title": "", "text": "and that he could answer questions the doctor posed to him while his back was turned. Smith performed no hearing tests on Rick-etts, however. Ricketts’ wife testified that he has trouble hearing the television and cannot hear conversations while driving. Ricketts also testified that he has constant pain in his left wrist. He takes four to six aspirin or acetaminophen tablets per day, and Clinoril, an anti-inflammatory for arthritis, twice a day. His daily activities consist primarily of sitting in a chair watching television. He drives his wife to work and picks her up, visits his sister once or twice a week, and goes to the grocery store occasionally. The AU found that Ricketts could perform his past work as an elevator operator and that his missing kneecap would not prevent him from doing “a reasonable amount of standing or walking.” The AU found Ricketts’ complaints of pain only partially credible because he takes only mild pain medication and concluded that Rick-etts’ daily activities suggest he can perform a full range of light work. The AU also noted that a job as an elevator operator would not require perfect hearing and concluded that Ricketts’ low IQ scores might have been caused by his educational deprivation. Consequently, the AU found Ricketts not disabled. Ricketts filed an action for judicial review and the district court granted summary judgment to the Secretary. DISCUSSION Our task on review is to determine whether substantial evidence in the record as a whole supports the Secretary’s conclusion that Ricketts can perform his past work as an elevator operator. See Chapman v. Bowen, 810 F.2d 151, 152 (8th Cir.1986). The AU determined that Rick-etts’ hearing impairment, borderline intelligence, and loss of one kneecap would not prevent him from engaging in the tasks required to run an elevator. The AU also found Ricketts’ daily activities consistent with an ability to perform a full range of light work. Ricketts claims that because the AU erred in discrediting his subjective complaints, the conclusion that he can return to his past work is incorrect. The AU found that Ricketts’ subjective complaints were" }, { "docid": "21545971", "title": "", "text": "AU also noted that a job as an elevator operator would not require perfect hearing and concluded that Ricketts’ low IQ scores might have been caused by his educational deprivation. Consequently, the AU found Ricketts not disabled. Ricketts filed an action for judicial review and the district court granted summary judgment to the Secretary. DISCUSSION Our task on review is to determine whether substantial evidence in the record as a whole supports the Secretary’s conclusion that Ricketts can perform his past work as an elevator operator. See Chapman v. Bowen, 810 F.2d 151, 152 (8th Cir.1986). The AU determined that Rick-etts’ hearing impairment, borderline intelligence, and loss of one kneecap would not prevent him from engaging in the tasks required to run an elevator. The AU also found Ricketts’ daily activities consistent with an ability to perform a full range of light work. Ricketts claims that because the AU erred in discrediting his subjective complaints, the conclusion that he can return to his past work is incorrect. The AU found that Ricketts’ subjective complaints were not fully credible because of his daily activities and his failure to take strong pain medication. An AU may discredit subjective complaints of pain only if they are inconsistent with the record as a whole. Polaski v. Heckler, 789 F.2d 1320, 1322 (8th Cir.1984) (subsequent history omitted). Ricketts testified that he spends most of his day watching television. He drives his wife to and from work and occasionally goes to the grocery store, carries out trash, and mows his lawn. The AU found that Ricketts’ daily activities indicate an ability to perform a full range of light work. The record does not support this conclusion. Light work may require a good deal of walking and standing, lifting of up to twenty pounds, and frequent lifting of ten pounds. 20 C.F.R. § 404.1567(b) (1989). To be considered capable of a full range of light work, a claimant must be able to perform substantially all these activities. Id. Ricketts’ ability to carry out trash occasionally or to spend one hour mowing his lawn is not substantial evidence" }, { "docid": "11685895", "title": "", "text": "his ability to perform full-time work. As we have repeatedly held, the inquiry must focus on the claimant’s ability “to perform the requisite physical acts day in and day out, in the sometimes competitive and stressful conditions in which real people work in the real world.” McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir.1982); see also Baumgarten v. Chater, 75 F.3d 366, 369 (8th Cir.1996) (claimant “need not prove that [his] pain precludes all productive activitiy and confines [him] to life in front of the television”); Thomas v. Sullivan, 876 F.2d 666, 669-70 (8th Cir.1989). While Tang may be able to prepare his children for school and to do the laundry on a daily basis, it does not follow that Tang is able to perform light or sedentary work continuously throughout the working day. Duration, Frequency, and Intensity of Pain The ALJ mischaracterized Tang’s testimony as stating that the pain was bearable and did not distract him. According to the record, Tang denied that the pain “interfere^] with [his] ability to concentrate and remember.” (R. at 59.) Moreover, Tang’s testimony with respect to pain is supported by his medical records and functional capacity evaluation. Dosage, Effectiveness, and Side Effects of Medication Tang has been under medical care since his injury. He has not only seen his primary physician, but has seen specialists recommended by that physician. For as long as he could afford to, he took all of the medicines that were prescribed, including Naprosyn and Flexeril (both pain killers), and used a TENS unit. Although Tang testified that he has of late been unable to afford either the prescribed medicines or the TENS unit, his inability to afford medication cannot be used as a basis for a denial of benefits. See Ricketts v. Secretary of Health and Human Services, 902 F.2d 661, 663-64 (8th Cir.1990). Functional restrictions Terri Terrill, a vocational evaluator at Goodwill Industries of Southeast Iowa, concluded in her vocational evaluation final report that as of January 19, 1996 — more than fifteen months after Tang’s injury — ■ Tang continued to experience pain that significantly" }, { "docid": "22600544", "title": "", "text": "deal of walking or standing, or ... involves sitting most of the time with some pushing and pulling of arm or leg controls.” 20 C.F.R. § 404.1567(b). It is by no means obvious that being able to walk and stand collectively for only half an eight-hour day and to sit for only two hours at a time would allow the claimant to perform substantially all of the jobs in the range of light work. Cf Rivers v. Heckler, 577 F.Supp. 766 (S.D.N.Y.1984) (where durational capacity is no more than two hours a day for sitting, standing or walking, the claimant is not capable of light work). Furthermore, Dr. Byrd limited the claimant’s combined activities to six hours out of an eight-hour day, i.e., to three-fourths of a full day’s work. Being able to work less than full time would also seem to preclude the ability to perform substantially all of the jobs in the range of light work. As the court noted in McCoy v. Schweiker, 683 F.2d 1138 (8th Cir.1982): “[t]he RFC that must be found if the grid is to be used, in the case of ... light work, is ... the ability to perform the requisite physical acts day in and day out, in the sometimes competitive and stressful conditions in which real people work in the real world.” Id. at 1147 (footnote omitted). The ALJ’s invocation of Dr. Byrd’s report in apparent support of the decision that the claimant could perform most jobs in the light work category will not substitute for the failure to explain what was in actuality the rejection of the views of the treating physicians and Dr. Cox. If the medical opinions of treating physicians are to be rejected, specific, legitimate reasons for so doing must be set forth. Turner v. Heckler, 754 F.2d 326 (10th Cir.1985); Byron v. Heckler, 742 F.2d 1232 (10th Cir.1984); Murray v. Heckler, 722 F.2d 499 (9th Cir.1983). Here the AU avoided any explanation by attempting to ignore or downplay the conflicting medical opinions. In summary, rather than evaluating and rejecting the reports of the treating physicians" }, { "docid": "7676134", "title": "", "text": "her home clean, but takes care not to exert herself. She does not want to sit all the time, because sitting for prolonged periods makes her pain worse. She can sit for twenty minutes without being in pain, drive a car, and stand without difficulty for ten or fifteen minutes. She can bend over, but cannot get up, and she can lift six to eight pounds. She does her own cooking, mopping, and sweeping,, but when she starts to feel pain, she sits down. She has difficulty sleeping, regularly waking up at 2:00 a.m., 4:00 a.m., and 6:00 a.m. (Admin. Agency R. 167-174.) The ALJ discounted the above evidence because Draper’s activities of daily living involved some light exertional activities, such as household chores, laundry, grocery shopping, mowing, and other chores. The fact that Draper tries to maintain her home and does her best to engage in ordinary life activities is not inconsistent with her complaints of pain, and in no way directs a finding that she is able to engage in light work. As we said in McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir.1982) (en banc), the test is whether the claimant has “the ability to perform the requisite physical acts day in and day out, in the sometimes competitive and stressful conditions in which real people work in the real world.” In other words, evidence of performing general housework does not preclude a finding of disability. In Rainey v. Dep’t of Health & Human Servs., 48 F.3d 292, 203 (8th Cir.1995), the claimant washed dishes, did light cooking, read, watched TV, visited with his mother, and drove to shop for groceries. We noted that these were activities that were not substantial evidence of the ability to do full-time, competitive work. In Baumgarten v. Chater, 75 F.3d 366, 369 (8th Cir. 1996), the ALJ pointed to the claimant’s daily activities, which included making her bed, preparing food, performing light housekeeping, grocery shopping, and visiting friends. We found this to be an unpersuasive reason to deny benefits: “We have repeatedly held ... that ‘the ability to do activities" }, { "docid": "21545972", "title": "", "text": "not fully credible because of his daily activities and his failure to take strong pain medication. An AU may discredit subjective complaints of pain only if they are inconsistent with the record as a whole. Polaski v. Heckler, 789 F.2d 1320, 1322 (8th Cir.1984) (subsequent history omitted). Ricketts testified that he spends most of his day watching television. He drives his wife to and from work and occasionally goes to the grocery store, carries out trash, and mows his lawn. The AU found that Ricketts’ daily activities indicate an ability to perform a full range of light work. The record does not support this conclusion. Light work may require a good deal of walking and standing, lifting of up to twenty pounds, and frequent lifting of ten pounds. 20 C.F.R. § 404.1567(b) (1989). To be considered capable of a full range of light work, a claimant must be able to perform substantially all these activities. Id. Ricketts’ ability to carry out trash occasionally or to spend one hour mowing his lawn is not substantial evidence that he can spend much of an eight-hour work day walking or standing. This court often has noted that an ability to do light housework does not necessarily indicate an ability to perform gainful employment. See Easter v. Bowen, 867 F.2d 1128, 1130 (8th Cir.1989); Yawitz v. Weinberger, 498 F.2d 956, 960 (8th Cir.1974). We do not find Ricketts’ daily activities consistent with a conclusion that he can perform light work “day in and day out, in the sometimes competitive and stressful conditions in which real people work in the real world.” McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir.1982) (citation omitted). Moreover, we find no inconsistency between Ricketts’ primarily sedentary daily activities and his subjective complaints of leg pain and weakness. The AU also discredited Ricketts’ allegations of pain because he takes only mild pain medication. Evidence in the record suggests that Ricketts does not take any prescription pain medications because he cannot afford them. He stated on his applications that he had no medical card or money with which to seek medical" }, { "docid": "21545969", "title": "", "text": "for the Social Security Administration in 1987, noted that Ricketts could not fully flex or extend his right leg, walk on his heel and toes, or squat because of the missing kneecap. X-rays indicated mild degenerative changes and possible early arthritis in the right knee. Ricketts testified at the hearing that his right leg gives out frequently, causing him to fall, and that he started walking with a cane to prevent falling. He cannot run or climb stairs. Ricketts’ wife corroborated this testimony. Ricketts also testified that he has constant ringing in his ears resulting from an accident in which he was electrocuted while installing a television antenna. Medication has not diminished the ringing in his ears, and he has tried a hearing aid without success. The Hearing Aid Center of Heber Springs, Arkansas submitted a report indicating that Ricketts has a sensorineural hearing loss of 71% in his right ear and a mixed loss of 75%, 50% of which is nerve loss, in his left ear. Dr. Smith reported that Ricketts’ hearing appeared normal and that he could answer questions the doctor posed to him while his back was turned. Smith performed no hearing tests on Rick-etts, however. Ricketts’ wife testified that he has trouble hearing the television and cannot hear conversations while driving. Ricketts also testified that he has constant pain in his left wrist. He takes four to six aspirin or acetaminophen tablets per day, and Clinoril, an anti-inflammatory for arthritis, twice a day. His daily activities consist primarily of sitting in a chair watching television. He drives his wife to work and picks her up, visits his sister once or twice a week, and goes to the grocery store occasionally. The AU found that Ricketts could perform his past work as an elevator operator and that his missing kneecap would not prevent him from doing “a reasonable amount of standing or walking.” The AU found Ricketts’ complaints of pain only partially credible because he takes only mild pain medication and concluded that Rick-etts’ daily activities suggest he can perform a full range of light work. The" }, { "docid": "7676135", "title": "", "text": "we said in McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir.1982) (en banc), the test is whether the claimant has “the ability to perform the requisite physical acts day in and day out, in the sometimes competitive and stressful conditions in which real people work in the real world.” In other words, evidence of performing general housework does not preclude a finding of disability. In Rainey v. Dep’t of Health & Human Servs., 48 F.3d 292, 203 (8th Cir.1995), the claimant washed dishes, did light cooking, read, watched TV, visited with his mother, and drove to shop for groceries. We noted that these were activities that were not substantial evidence of the ability to do full-time, competitive work. In Baumgarten v. Chater, 75 F.3d 366, 369 (8th Cir. 1996), the ALJ pointed to the claimant’s daily activities, which included making her bed, preparing food, performing light housekeeping, grocery shopping, and visiting friends. We found this to be an unpersuasive reason to deny benefits: “We have repeatedly held ... that ‘the ability to do activities such as light housework and visiting with friends provides little or no support for the finding that a claimant can perform full-time competitive work.’ ” Id. (quoting Hogg v. Shalala, 45 F.3d 276, 278 (8th Cir.1995)). Moreover, we have reminded the Commissioner that to find a claimant has the residual functional capacity to perform a certain type of work, the claimant must have the ability to perform the requisite acts day in and day out, in the sometimes competitive and stressful conditions in which real people work in the real world.... The ability to do light housework with assistance, attend church, or visit with friends on the phone does not qualify as the ability to do substantial gainful activity. Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir.1989) (citations omitted). The ALJ’s refusal to call a vocational expert compounded its error in failing to credit Draper’s subjective complaints of pain. Our cases have often explained the rule with respect to the decision to call a vocational expert where there is a nonexertional impairment: Generally, if" }, { "docid": "23398904", "title": "", "text": "to take his pain medication warrants discrediting his subjective complaints of pain. Ghant’s daily activities do not indicate that his subjective complaints of pain and functional limitation were not fully credible or that he could perform light work. In September, 1986, Ghant testified that he cooks, grocery shops, plays cards and dominos, fishes, and attends church about once a month. A person who performs light work may be required to do a good deal of walking, sitting and standing, lifting of up to twenty pounds and frequent lifting of ten pounds. 20 C.F.R. § 404.1567(b) (1990). Ghant’s ability to do housework is not necessarily substantial evidence that he can perform the requirements of light work. We have previously held that a person who is able to do light housework is not necessarily able to perform gainful employment. See Ricketts v. Secretary of Health & Human Services, 902 F.2d 661, 663 (8th Cir.1990); Easter v. Bowen, 867 F.2d 1128, 1130 (8th Cir.1989); Yawitz v. Weinberger, 498 F.2d 956, 960 (8th Cir.1974). Moreover, Ghant’s ability to fish and play dominos does not indicate that he can perform light work forty hours a week. These activities are primarily sedentary in nature and do not establish that Ghant could do a substantial amount of walking or standing. In addition, the inconsistencies in Ghant’s accounts of his daily activities do not merit discrediting his subjective complaints of pain. Ghant’s 1985 account of his daily activities was substantially similar to his account in 1986. Moreover, the differences in the two accounts could be explained if Ghant’s health deteriorated from 1985 to 1986. Ghant’s wife indicated in October, 1986, that Ghant recently had become more limited in what he could do. Notwithstanding the inconsistencies in the record, there is substantial evidence on the record as a whole to find Ghant’s complaints of pain credible. After reviewing the entire record, AU Cordek specifically found that Ghant’s complaints of pain were supported by objective medical evidence. Moreover, Doctors Ansari, Johnson, and Greenberg stated that Ghant had considerable pain. C. Treating Physician’s Opinion Ghant also argues that the Appeals Council" }, { "docid": "6544031", "title": "", "text": "supported by substantial evidence. 42 U.S.C. § 405(g). Plaintiff first asserts the Secretary’s finding that he is capable of light work is not supported by substantial evidence. According to the definition of light work, a claimant must be able to perform substantially all of the following activities: 1) lifting no more than 20 pounds with frequent lifting or carrying of objects weighing up to 10 pounds; 2) walking and standing for substantial periods of time; and/or 3) sitting for extended periods with some pushing and pulling of arm or leg controls. 20 C.F.R. § 404.1567(b). Contrary to plaintiffs assertions, a review of the testimony and records offered at the hearing indicates substantial support for the Secretary’s determination. Plaintiff testified at the hearing that he is capable of frequently lifting 20-30 pounds. Medical reports introduced at the hearing indicated that plaintiff possesses the ability to stand and sit approximately six hours out of an eight-hour work day. Moreover, the medical advisor testified that plaintiffs conditions would not prevent him from performing the walking required for light work. The medical advisor also opined that plaintiff could do a job which required some pushing or pulling of arm or leg controls. Plaintiff, however, contends the Secretary’s decision failed to recognize certain critical evidence. At the administrative hearing, plaintiff testified that due to pain in his ankles, he is unable to walk more than the distance of a block or drive more than a distance of 17 miles. As plaintiff’s testimony demonstrated he is incapable of substantially performing many of the activities required for light work, plaintiff argues a finding of disability was mandated. An examination of plaintiff’s testimony at the hearing shows that plaintiff made various inconsistent claims concerning pain and his ability to walk. In addressing plaintiff’s testimony, the AU discussed plaintiff’s inconsistent statements and determined plaintiff's assertions concerning his physical abilities lacked credibility. As such, the AU relied primarily on the medical records and testimony of the medical advisor in making his findings under 20 C.F.R. § 404.1567(b). An AU’s credibility findings are entitled to considerable weight and are not to" }, { "docid": "11685894", "title": "", "text": "in the record as a whole supports his decision. See Burress v. Apfel, 141 F.3d 875, 878 (8th Cir.1998). “Substantial evidence is less than a preponderance, but enough that a reasonable mind might accept it as adequate to support a decision.” Cox v. Apfel, 160 F.3d 1203, 1206-07 (8th Cir.1998). We also evaluate any'evidence that contradicts the Commissioner’s decision, rather than simply searching the record for supporting evidence. See id. at 1207. We believe the ALJ’s Polaski analysis is unsupported by the record. Daily Activities The ALJ summarized Tang’s daily activities as follows: In describing his activities of daily living the claimant states his day starts at 6:30 a.m. when he gets the children ready for school. He goes to bed at approximately 9:00 p.m. He states he can no longer ride his bike, play ball, shovel snow, take out the garbage, or mow his lawn. He is still able to climb stairs and does the laundry. (R. at 16-17.) Tang’s ability to engage in domestic activities like those described here provides scant evidence of his ability to perform full-time work. As we have repeatedly held, the inquiry must focus on the claimant’s ability “to perform the requisite physical acts day in and day out, in the sometimes competitive and stressful conditions in which real people work in the real world.” McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir.1982); see also Baumgarten v. Chater, 75 F.3d 366, 369 (8th Cir.1996) (claimant “need not prove that [his] pain precludes all productive activitiy and confines [him] to life in front of the television”); Thomas v. Sullivan, 876 F.2d 666, 669-70 (8th Cir.1989). While Tang may be able to prepare his children for school and to do the laundry on a daily basis, it does not follow that Tang is able to perform light or sedentary work continuously throughout the working day. Duration, Frequency, and Intensity of Pain The ALJ mischaracterized Tang’s testimony as stating that the pain was bearable and did not distract him. According to the record, Tang denied that the pain “interfere^] with [his] ability to concentrate and remember.”" }, { "docid": "22283962", "title": "", "text": "duration, frequency and intensity of the pain; precipitating and aggravating factors; dosage, effectiveness, and side effects of medication; and functional restrictions when evaluating subjective complaints of pain). The ALJ’s treatment of Ellis’s daily activities is at odds with the law in this circuit. The ALJ determined that Ellis’s testimony, that he watched television and read books on a daily basis, was evidence that he could sit for six hours in an eight-hour day and stand and/or walk for up to two hours in an eight-hour day, and thus perform sedentary work. He was in error. In McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir.1982) (en banc), we stated the ability to do sedentary work “is the ability to perform the requisite physical acts day in and day out, in the sometimes competitive and stressful conditions in which real people work in the real world.” The ability to watch television, like the ability to do light housework with assistance, attend church or visit with friends on the phone, does not qualify as the ability to do substantial gainful activity. See Hogg v. Shalala, 45 F.3d 276, 278 (8th Cir.1995); Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir.1989). A claimant “need not prove that her pain precludes all productive activity and confines her to life in front of the television” in order to prove her disability. Baumgarten v. Chater, 75 F.3d 366, 369 (8th Cir.1996); see also Harris v. Sec’y of Dep’t of Health & Human Servs., 959 F.2d 723, 726 (8th Cir.1992) (spending much of the day listening to the radio and watching TV is not substantial evidence of the ability to do full-time competitive work); Rainey v. Dep’t of Health & Human Servs., 48 F.3d 292 (8th Cir.1995) (the fact that claimant read and watched television is not substantial evidence of his ability to do full-time competitive work). As to Ellis’s functional restrictions, Dr. Johnson reported that claimant could not sit or stand for more than one hour at a time due to chronic pain and his tendency toward developing blood clots in his legs. He further reported" }, { "docid": "22283961", "title": "", "text": "forty hours, per week, in a competitive economy. He noted Ellis’s extensive medical history, but made no finding as to whether Ellis’s pain was, in fact, disabling. Dr. Secor did not address Dr. Johnson’s finding that claimant is unable to stand for more than one hour at a time because of chronic pain and the deep vein thrombosis. In my view, the opinion of Dr. Johnson, claimant’s treating physician, is well supported by medically acceptable clinical and laboratory diagnostic techniques and, is entirely consistent with the record. His conclusion, that Ellis is unable to sit for more than an hour at a time, is consistent with evidence of multiple serious accidents, chronic pain, and deep vein thrombosis. Thus, it should be given controlling weight. See Singh v. Apfel, 222 F.3d 448, 452 (8th Cir.2000). The ALJ also did not properly analyze five Polaski factors when evaluating the effect of Ellis’s pain on his ability to work. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984) (stating that the adjudicator must consider Ellis's daily activities; the duration, frequency and intensity of the pain; precipitating and aggravating factors; dosage, effectiveness, and side effects of medication; and functional restrictions when evaluating subjective complaints of pain). The ALJ’s treatment of Ellis’s daily activities is at odds with the law in this circuit. The ALJ determined that Ellis’s testimony, that he watched television and read books on a daily basis, was evidence that he could sit for six hours in an eight-hour day and stand and/or walk for up to two hours in an eight-hour day, and thus perform sedentary work. He was in error. In McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir.1982) (en banc), we stated the ability to do sedentary work “is the ability to perform the requisite physical acts day in and day out, in the sometimes competitive and stressful conditions in which real people work in the real world.” The ability to watch television, like the ability to do light housework with assistance, attend church or visit with friends on the phone, does not qualify as the ability to" }, { "docid": "4145544", "title": "", "text": "that Baker did not receive regular medical treatment. First, Baker testified that she saw three physicians: Dr. Charles Ledbetter, Dr. Bob Aarons, and Dr. Roland Bailey. Baker’s medical records from these doctors are not contained in the administrative record. Second, Baker and her mother both testified that she did not go more often to the doctor or obtain medication because she could not afford to do so. An AU must consider a claimant’s allegation that she has not used medications because of a lack of finances. Dover v. Bowen, 784 F.2d 335, 337 (8th Cir.1986). The AU also noted that Baker’s daily activities were not consistent with one who could not engage in her past relevant work. The record does not support such a finding. The AU found that Baker did most of the housework, some of the laundry and cooking; raised two children; drove short distances; read the newspaper and the Bible; and watched television. Baker’s daily routine, according to her testimony and supported by that of her husband and mother, consisted of washing a few dishes for fifteen or twenty minutes and vacuuming for five or ten minutes before needing to sit down. (Admin.R. at 79-80; 113-16.) We have often noted that an ability to do light housecleaning or to drive a car does not necessarily indicate an ability to perform gainful employment. See Easter v. Bowen, 867 F.2d 1128, 1130 (8th Cir.1989); Yawitz v. Weinberger, 498 F.2d 956, 960 (8th Cir.1974) (per curiam). Baker’s performance of household duties, during which she must rest every ten or twenty minutes, does not support a conclusion that she is capable of working “day in and day out, in the sometimes competitive and stressful conditions in which real people work in the real world.” McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir.1982) (citation omitted). See also Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir.1989) (ability to do light housework with assistance, attend church, or visit with friends on phone does not qualify as ability to do substantial gainful activity). The AU also pointed to the lack of objective evidence" }, { "docid": "23417703", "title": "", "text": "was “direct medical evidence of [a] cause and effect relationship” between his pulmonary and arthritis problems and his subjective pain. Id. On remand, the ALJ must make explicit credibility findings on this issue. See Wilson v. Schweiker, 681 F.2d 526, 527 (8th Cir. 1982); Andrews v. Schweiker, 680 F.2d 559, 560-561 (8th Cir. 1982). For the reasons stated above, we reverse the order of the district court and remand to it with directions that this cause be remanded to the Secretary for further evidentiary proceedings. In light of the sketchy nature of the previous hearing on this application, the claimant must be given an opportunity to present further evidence relevant to his claim. The ALJ must fully and fairly develop the record, particularly as to Tucker’s mental impairment and subjective complaints of pain, so that a just determination of disability can be made. See, e.g., McCoy v. Schweiker, supra, 683 F.2d at 1147; Landess v. Weinberger, 490 F.2d 1187, 1189 (8th Cir. 1974). Because we have found that further evidentiary proceedings are necessary in this case, we need not reach the question of whether there is substantial evidence in the record to support the ALJ’s finding that the claimant has the residual functional capacity (RFC) to perform light work. We note that Dr. McMillan’s findings that Tucker cannot stand or walk for eight hours a day or lift ten or more pounds frequently is inconsistent with the ALJ’s conclusion that Tucker can do light work, and the record does not contain strong evidence specifically supporting the ALJ’s conclusion. We further note that “[t]he RFC that must be found if the grid is to be used, in the case of sedentary and medium work, as well as light work, is not the ability merely to lift weights occasionally in a doctor’s office; it is the ability to perform the requisite physical acts day in and day out, in the sometimes competitive and stressful conditions in which real people work in the real world.” McCoy v. Schweiker, supra, 683 F. 2d at 1147. See Kirk v. Secretary of Health and Human Services," }, { "docid": "21545973", "title": "", "text": "that he can spend much of an eight-hour work day walking or standing. This court often has noted that an ability to do light housework does not necessarily indicate an ability to perform gainful employment. See Easter v. Bowen, 867 F.2d 1128, 1130 (8th Cir.1989); Yawitz v. Weinberger, 498 F.2d 956, 960 (8th Cir.1974). We do not find Ricketts’ daily activities consistent with a conclusion that he can perform light work “day in and day out, in the sometimes competitive and stressful conditions in which real people work in the real world.” McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir.1982) (citation omitted). Moreover, we find no inconsistency between Ricketts’ primarily sedentary daily activities and his subjective complaints of leg pain and weakness. The AU also discredited Ricketts’ allegations of pain because he takes only mild pain medication. Evidence in the record suggests that Ricketts does not take any prescription pain medications because he cannot afford them. He stated on his applications that he had no medical card or money with which to seek medical treatment. The record does show that he takes non-prescription pain medication two or three times every day and an anti-inflammatory for arthritis twice each day. In view of his limited financial resources, we do not believe Ricketts’ failure to take prescription pain medication is inconsistent with, or requires disbelief of, his subjective complaints. Cf. Tome v. Schweiker, 724 F.2d 711, 714 (8th Cir.1984) (a lack of financial resources can be an independent ground justifying failure to follow medical treatment prescribed to remedy a disabling impairment). If an AU rejects a claimant’s testimony regarding pain, he must make an express credibility determination detailing his reasons for discrediting the testimony. Lanning v. Heckler, 777 F.2d 1816, 1317 (8th Cir.1985). In assessing Ricketts’ subjective complaints, the AU did not make express credibility findings regarding all of Ricketts’ allegations. In particular, the AU failed to mention Ricketts’ claim that his right leg gives out on him frequently, causing him to fall if he does not use a cane. Ricketts’ wife corroborated his testimony on this point, and nothing in" }, { "docid": "4145545", "title": "", "text": "a few dishes for fifteen or twenty minutes and vacuuming for five or ten minutes before needing to sit down. (Admin.R. at 79-80; 113-16.) We have often noted that an ability to do light housecleaning or to drive a car does not necessarily indicate an ability to perform gainful employment. See Easter v. Bowen, 867 F.2d 1128, 1130 (8th Cir.1989); Yawitz v. Weinberger, 498 F.2d 956, 960 (8th Cir.1974) (per curiam). Baker’s performance of household duties, during which she must rest every ten or twenty minutes, does not support a conclusion that she is capable of working “day in and day out, in the sometimes competitive and stressful conditions in which real people work in the real world.” McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir.1982) (citation omitted). See also Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir.1989) (ability to do light housework with assistance, attend church, or visit with friends on phone does not qualify as ability to do substantial gainful activity). The AU also pointed to the lack of objective evidence and diagnoses to support Baker’s complaints of pain. Again, this court has cited repeatedly the proposition that the AU may not disregard the claimant’s complaints of pain solely because the objective medical evidence did not fully support them. See, e.g., O’Leary, 710 F.2d at 1342. Here, there is a paucity of objective evidence. The minimal extent to which Baker exerts herself and the simple tasks she performs on a daily basis, however, support her contentions of pain, and does not demonstrate that she can engage in what was previously described as her past work. Finally, although Baker’s mental condition alone is not so severe as to warrant a finding of disability, substantial evidence fails to support the AU’s finding that her mental condition did not limit her ability to perform the full range of medium work. The consulting psychologist’s report states clearly that Baker’s ability to make occupational adjustments and personal-social adjustments was “seriously limited, but not precluded.” The psychologist reported that Baker’s limitations included borderline to low average IQ; difficulty with planning and organizing;" }, { "docid": "23642680", "title": "", "text": "attendant that the vocational expert indicated Howard could perform requires medium strength, which the record clearly indicates Howard does not possess. 4. The ALJ found that Howard was not credible with respect to her subjective complaints of pain and resulting functional limitations because her daily activities indicated she was able to work. The testimony indicates that Howard only does light cleaning, such as dusting, she watches television, and is driven to where she needs to go by her two oldest daughters, her children help her fold and put away laundry, cook for her, do outdoor chores, and run errands. (Admin. Tr. at 25.) These activities certainly do not indicate an ability to work “in the sometimes competitive and stressful conditions in which real people work in the real world.” McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir.1982) (en banc). In Baumgarten v. Chater, 75 F.3d 366, 369 (8th Cir.1996), we reiterated that “the ability to do activities such as light housework and visiting with friends provides little or no support for the finding that a claimant can perform full-time competitive work,” (quoting Hogg v. Shalala, 45 F.3d 276, 278 (8th Cir.1995)). This standard has correctly been applied by this court in numerous other cases. See Rainey v. Department of Health & Human Servs., 48 F.3d 292, 293 (8th Cir. 1995) (holding that heating food, visiting relatives, and watching television were “activities we have held are not substantial evidence of the ability to do full-time work.”); Kowril v. Bowen, 912 F.2d 971, 976 (8th Cir.1990) (stating that “[disability does not require total incapacity. It requires that an individual be unable to engage in substantial gainful activity.”); Cline v. Sullivan, 939 F.2d 560, 565 (8th Cir.1991) (holding that claimant’s “ability merely to perform the limited service of pouring coffee or removing the excess plates from a table on an occasional basis does not compel a conclusion that a claimant is capable of performing the full range of sedentary work on a sustained basis”); Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir.1989) (stating that claimant’s “ability to do light housework with" }, { "docid": "11305818", "title": "", "text": "To be considered capable of performing a full or wide range of light work, you must be able to do substantially all of these activities. 20 C.F.R. § 404.1567(b) (emphasis added). Nelson argues that the AU’s findings regarding her physical impairments are fatally inconsistent with the regulation’s definition of light work. The ALJ made several findings regarding Nelson’s physical condition and abilities to perform work related functions. In particular, he found that Nelson suffered from degenerative joint disease in her right ankle, and was therefore incapable of “using her right foot for repetitive movement, as in operating foot controls.” The ALJ further found that Nelson would be capable of performing work related functions except those requiring: fine manipulation of her hands; bending and squatting; lifting objects weighing more than twenty pounds; or standing and walking more than one to four hours per day. Nelson does not contend that these findings are not supported by substantial evidence; rather, she suggests that they negate a conclusion that she is capable of performing light work. We are not persuaded that these findings are inconsistent with the conclusion that Nelson is capable of performing light work. With the exception of being able to use her right foot for repetitive movements, it appears that Nelson is capable of engaging in all of the activities which are by definition associated with light work. She is, for example, capable of lifting up to twenty pounds; walking and standing up to four hours per day; and using both arms and her left foot for the pushing and pulling of arm or leg controls. Nelson’s ability to engage in these activities satisfies the regulation’s requirement that the worker must be capable of performing “substantially all” of the activities associated with light work. See 20 C.F.R. § 404.1567(b). Nelson next argues that the grid should not have been applied in this case because she suffers from pain. The AU found that Nelson testified credibly as to her subjective complaints, but that the medical evidence presented did not support the conclusion that the pain of which Nelson complained would be constant," }, { "docid": "23398903", "title": "", "text": "had the residual functional capacity for light work in an environment free of pulmonary irritants. After reviewing the record as a whole, we conclude that the Appeals Council erred in discrediting Ghant’s subjective complaints of pain and functional limitation. Ghant’s history of incarceration has no effect on Ghant’s credibility in this case. Ghant was incarcerated more than twenty years ago for committing armed robbery. Ghant’s explanation for using two social security numbers, to conceal his prison record so he could get a job, is not sufficient reason to disregard the complaints of pain that were substantiated by other evidence in the record. Medical evidence clearly supports his nonexertional impairments. The fact that Ghant took very little pain medication does not establish that Ghant’s complaints of pain were not credible. Ghant testified that he does not take his medication often because the medication knocks him out and causes him to feel bad in the morning. App. II at 513-14. In view of the effect the medication allegedly has on him, we do not believe Ghant’s failure to take his pain medication warrants discrediting his subjective complaints of pain. Ghant’s daily activities do not indicate that his subjective complaints of pain and functional limitation were not fully credible or that he could perform light work. In September, 1986, Ghant testified that he cooks, grocery shops, plays cards and dominos, fishes, and attends church about once a month. A person who performs light work may be required to do a good deal of walking, sitting and standing, lifting of up to twenty pounds and frequent lifting of ten pounds. 20 C.F.R. § 404.1567(b) (1990). Ghant’s ability to do housework is not necessarily substantial evidence that he can perform the requirements of light work. We have previously held that a person who is able to do light housework is not necessarily able to perform gainful employment. See Ricketts v. Secretary of Health & Human Services, 902 F.2d 661, 663 (8th Cir.1990); Easter v. Bowen, 867 F.2d 1128, 1130 (8th Cir.1989); Yawitz v. Weinberger, 498 F.2d 956, 960 (8th Cir.1974). Moreover, Ghant’s ability to fish" } ]

[ { "docid": "10059769", "title": "", "text": "ALTIMARI, Circuit Judge: Appellants Richard Delvecchio and Angelo Amen were charged in a two count indictment with conspiracy to possess with intent to distribute and to distribute heroin (Count One); and with attempt to possess heroin with intent to distribute (Count Two), in violation of 21 U.S.C. § 846. After a five day jury trial in the United States District Court for the Southern District of New York before Judge David N. Edelstein, both defendants were found guilty on both counts of the indictment. Appellant Delvecchio was sentenced to two six-year terms of imprisonment, to be served concurrently. Appellant Amen was sentenced to two nine-year terms of imprisonment, also to be served concurrently. We find that the evidence presented at trial was insufficient as a matter of law to sustain the submission of the “attempt” count to the jury. Therefore we reverse both appellants’ convictions and vacate their sentences on Count Two of the indictment, and direct that Count Two be dismissed. We affirm appellants’ convictions on Count One, because we conclude that appellants’ other claims of error do not justify granting a new trial on the conspiracy count. BACKGROUND This appeal arises out of the Drug Enforcement Administration’s (“DEA”) investigation and infiltration of a heroin conspiracy which allegedly was run by an individual named Oreste Abbamonte, Jr., appellant Amen’s cousin. The conspiracy was alleged to have taken place between April 1982 and July 1983. DEA Special Agent Gerald Franciosa was the government’s principal witness at trial. Franciosa testified that on November 3, 1982, nine kilograms of heroin were seized from Abbamonte and Joseph Delvecchio (the brother of appellant Richard Delvecchio); the two men were subsequently incarcerated. Abbamonte frequently was visited in jail by his cousin, Angelo Amen; Joseph Delvecchio was visited frequently by his brother Richard. On several occasions in April and May of 1983, Angelo Amen and Richard Delvecchio visited Abbamonte together. Around April 1983, Lorenzo DiChiara, another member of the alleged conspiracy, was released from jail and began to cooperate with the DEA. Shortly after his release, DiChiara received flowers at his home on three occasions. The" } ]

[ { "docid": "21730378", "title": "", "text": "eligible for parole after serving twenty months of his five-year prison sentence, following his twelve-year term. Thus, the district judge was free to re-sentence him on the continuing criminal enterprise count to a term that would have increased his period of incarceration by no more than twenty months — that is, to a term of thirteen years and eight months. For the foregoing reasons, Count Nine is REMANDED FOR RESENTENCING. The sentence should not exceed thirteen years and eight months. . 21 U.S.C. § 846 (Count 1). . 21 U.S.C. § 841(a)(1) (Counts 2-8). . 21 U.S.C. § 848 (Count 9). . The parties do not dispute Mr. Bello’s eligibility for parole under these sentences. The district judge also imposed a special parole term of eight years as to the convictions for distribution (Counts 2-8); those terms were to be concurrent with one another, and in addition to the period of imprisonment. The parties have not raised the existence of these special parole terms under the initial sentence in any of their arguments, however. . Section 848(c) of Title 21 provides: In the case of any sentence imposed under this section, ... section 4202 of Title 18 [which was the section of the United States Code providing for parole in 1970, when Section 848(c) was enacted] ..., shall not apply. . At the re-sentencing hearing, appellant’s counsel stated that appellant had spent \"nearly two years” in prison. See Transcript of Re-sentencing Hearing of March 30, 1984, p. 7, Joint Appendix at 44. His opening brief in this appeal, however, states that appellant had been imprisoned for thirty (30) months at the time of re-sentencing. See Brief of Appellant, at 3. The discrepancy is not relevant here, however. . Appellant does not argue that due process prohibits (absent compliance with the Pearce requirements) any increase whatever in the twelve-year sentence; rather, he argues only that due process prevents (absent compliance with Pearce) any increase in the sentence that would make it more severe than the entire original sentencing package of twelve non-paroleable years and five consecutive paroleable years. Thus, the Court" }, { "docid": "21730377", "title": "", "text": "important is the fact that his successful appeal of eight convictions was grounded on their being lesser included offenses of the continuing criminal enterprise offense, for which he also was convicted. We do not perceive how a defendant can have a reasonable expectation of finality in a sentence for an offense where the defendant appeals the convictions on other offenses as lesser included offenses. It would often be a windfall for the defendant to have a reduced sentence after such an appeal, in view of the fact that the defendant remains convicted of the same conduct for which the original sentencing package was imposed. We find no double jeopardy violation in the district judge’s sentence. As discussed above, due process precluded the district judge at resentencing from imposing a sentence more severe than the initial sentence. We believe that the subsequent sentence should not have subjected Mr. Bello to any greater period of incarceration than he was certain to serve under his initial sentence. The parties do not dispute that Mr. Bello would have been eligible for parole after serving twenty months of his five-year prison sentence, following his twelve-year term. Thus, the district judge was free to re-sentence him on the continuing criminal enterprise count to a term that would have increased his period of incarceration by no more than twenty months — that is, to a term of thirteen years and eight months. For the foregoing reasons, Count Nine is REMANDED FOR RESENTENCING. The sentence should not exceed thirteen years and eight months. . 21 U.S.C. § 846 (Count 1). . 21 U.S.C. § 841(a)(1) (Counts 2-8). . 21 U.S.C. § 848 (Count 9). . The parties do not dispute Mr. Bello’s eligibility for parole under these sentences. The district judge also imposed a special parole term of eight years as to the convictions for distribution (Counts 2-8); those terms were to be concurrent with one another, and in addition to the period of imprisonment. The parties have not raised the existence of these special parole terms under the initial sentence in any of their arguments, however. ." }, { "docid": "21570902", "title": "", "text": "of money laundering in violation of 18 U.S.C. §§ 1956(a)(l)(B)(i) and (2) (counts nineteen through twenty-two). The court sentenced Wesson to concurrent sentences of life imprisonment on counts one and two; 240 months imprisonment on each of counts four, five, six, seven, eight, ten, eleven, fifteen, and seventeen; 48 months imprisonment on each of counts nine, sixteen, and eighteen; and 60 months imprisonment on each of counts nineteen through twenty-two. The court also sentenced Wesson to 60 months imprisonment on each of counts three and twelve to run consecutive to each other and to all other counts. Finally the court sentenced Wesson to supervised release for life, in the unlikely event that he ever got out of prison. The jury convicted Gloria Steele of one count of conspiracy to possess and to possess with intent to distribute controlled substances in violation of 21 U.S.C. § 846 and aiding and abetting that conspiracy in violation of 18 U.S.C. § 2 (count one); and four counts of money laundering in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and 2 (counts nineteen through twenty-two). The court sentenced Steele to concurrent sentences of life imprisonment on count one and 60 months imprisonment on each of counts nineteen, twenty, twenty-one, and twenty-two, to be followed by five years supervised release. The jury convicted Lisa Harris of one count of conspiracy to possess and to possess with intent to distribute controlled substances in violation of 21 U.S.C. § 846 and aiding and abetting that conspiracy in violation of 18 U.S.C. § 2 (count one); and one count of heroin distribution in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (count seventeen); and one count of use of a communications facility in committing and causing and facilitating the commission of a federal drug crime in violation of 21 U.S.C. § 843(b) (count eighteen). The court sentenced Lisa Harris to concurrent sentences of 10 years imprisonment on count one; 12 months imprisonment on count seventeen; and four years imprisonment on count eighteen; to be followed by five years supervised release. Wesson filed a notice of appeal" }, { "docid": "23094664", "title": "", "text": "before a judge who finds the plague that narcotics has caused to people and families and neighbors intolerable.” While this statement clearly indicates Judge Carter’s predisposition to sentence narcotics offenders heavily, the statute gives him this latitude. Moreover, he made the statement in the context of determining the weight to be given the personal remorse expressed by the defendants who, after all, were engaged in large-scale heroin purchases and sales over a long period of time. The case is thus distinguishable from United States v. Wardlaw, 576 F.2d 932, 936-38 (1st Cir. 1978), where a judge imposed a large sentence on a first-time drug carrier primarily because of its presumed effect on large-scale drug smugglers. As to the imposition of consecutive sentences, this case does not contain the “extraordinary set of circumstances” necessary to demonstrate that consecutive sentences are cruel and unusual. See United States v. Golomb, 754 F.2d 86, 90 (2d Cir. 1985). Although Amen’s prior conviction also involved business with Abbamonte, the time periods and membership of the two conspiracies as charged in the indictment were distinct. V. Mark Deleonardis’ Sentence Deleonardis pleaded guilty to one count of conspiracy under 21 U.S.C. § 846, and six counts of distribution and possession with intent to distribute. He was sentenced to twenty years on Count One, an additional five years on Count Six, twenty years each on Counts Seven through Ten concurrently with Count One, a fine of $350, and lifetime parole. He now argues that this sentence violates the Eighth Amendment, citing Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), and quoting statistics regarding average sentences in the Southern District of New York and elsewhere. The evidence Deleonardis presents is similar to that in United States v. Ortiz, 742 F.2d 712 (2d Cir.), cert. denied, 469 U.S. 1075, 105 S.Ct. 573, 83 L.Ed.2d 513 (1984), where we upheld a ten-year prison term plus ten-year parole sentence for conviction of a single count of possession of heroin with intent to distribute. Even without considering the statistical evidence, Deleonardis’ total twenty-five year sentence for seven separate" }, { "docid": "18566334", "title": "", "text": "MESKILL, Circuit Judge: This is an appeal from a judgment of conviction entered in the United States District Court for the Southern District of New York, Carter, J., following a guilty plea by Richard Romano to one count of conspiracy to distribute and possess with intent to distribute heroin in violation of 21 U.S.C. §§ 812 and 841 (1982). Judge Carter denied defendant Romano’s request for a hearing to contest portions of the pre-sen-tence report and sentenced Romano to the maximum term of twenty years imprisonment. The district court based its sentencing decision on evidence developed in a related trial, over which Judge Carter presided, United States v. Vasta, 649 F.Supp. 974 (S.D.N.Y.1986), which showed Romano’s involvement with Oreste Abbamonte, Jr. and Michael Paradiso in a heroin distribution ring operating from the Lewisburg penitentiary in Lewisburg, Pennsylvania (Lewisburg). Romano now claims that the district court violated due process by denying his request for a hearing to challenge the report and by imposing the maximum term of imprisonment following his guilty plea. We disagree and affirm the judgment of the district court. BACKGROUND The trial of Abbamonte and Paradiso (the conspiracy trial) developed the following facts. In the summer of 1984, the Drug Enforcement Agency (DEA) began an undercover operation which culminated in the prosecution of several individuals, including defendant Romano, for narcotics violations. The DEA investigation revealed an extensive drug distribution ring operating from Lewisburg. Two participants in the heroin distribution network, Abbamonte and Paradiso, inmates at Lewisburg, controlled the entire operation by using coded language to communicate with operatives outside of the prison. DEA undercover agents, posing as drug purchasers, managed to infiltrate the ring and expose its principals and several of its “foot soldiers.” On August 26, 1986, the government filed an indictment charging fourteen defendants with various counts of conspiracy to distribute, possession and distribution of narcotics. Romano was named in Count One, charging a conspiracy to distribute controlled substances in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A) and 841(b)(1)(B) (1982) (prior to amendment on Oct. 12, 1984, by Pub.L. No. 98-473, Title II, Section 502)," }, { "docid": "23094635", "title": "", "text": "OAKES, Circuit Judge: Angelo Amen, Mark Deleonardis, Michael Paradiso, and Oreste Abbamonte, Jr., four of fourteen original defendants in a twenty-three count indictment, appeal convictions entered in the United States District Court for the Southern District of New York, Robert L. Carter, Judge. Following denial of their suppression (and certain other) motions in United States v. Vasta, 649 F.Supp. 974 (S.D.N.Y.1986), appellants Amen and Deleonardis pleaded guilty to all the counts in which they were named, including Count One, alleging a conspiracy to distribute and possess with intent to distribute heroin in violation of 21 U.S.C. § 846 and Counts Five through Ten and Counts Six through Nine respectively charging Deleonardis and Amen with distributing heroin. Abbamonte, Paradiso, and six other codefendants were convicted after a jury trial, Abbamonte of Count One, the conspiracy count, Count Three, operating a continuing criminal enterprise in violation of 21 U.S.C. § 848, and Counts Seven and Eight, distributing heroin. Paradiso was convicted on Counts One and Four, Count Four charging aiding and abetting Abbamonte in the operation of his continuing criminal enterprise in violation of 21 U.S.C. § 848 and 18 U.S.C. § 2. On January 14, 1987, Judge Carter sentenced Amen to a twenty-year prison term on Count One, to run consecutively to a nine-year prison term imposed by David N. Edelstein, United States District Judge, on July 22, 1986, for Amen’s conviction in United States v. Delvecchio and Amen, 86 Cr. 305 (S.D.N.Y.), aff'd in part, rev’d in part, 816 F.2d 859 (2d Cir.1987). In addition, Judge Carter sentenced Amen to concurrent twenty-year terms on Counts Seven and Eight. On the same day, Judge Carter sentenced Mark Deleonardis to a twenty-year prison term on Count One, a consecutive five-year prison term on Count Six, and concurrent twenty-year prison terms on each of Counts Five, Seven, Eight, Nine, and Ten. Judge Carter also imposed lifetime special parole on Deleonardis. On January 15, 1987, Judge Carter sentenced Abbamonte to life imprisonment on Count Three and imposed concurrent forty-year prison terms on each of Counts One, Seven, and Eight. In an endorsement dated January" }, { "docid": "23094662", "title": "", "text": "kingpin lack support in legislative history but it also seems totally unworkable. How does one determine whether a person is an employee or third party? What of the businessman who leases a boat to a CCE engaged in importation? What about the kingpin's bodyguard? Or his lawyer? Ultimately, a subordinate may have all the attributes of a third party and render even greater assistance to the kingpin, yet escape enhanced criminal responsibility because it depends solely on the degree of control exercised by the kingpin over the individual. Normally we would assume that in enacting a later statute (section 848) Congress had the earlier one (section 2) in mind and we would reconcile the two if we could, but we do not believe it possible to do so here and still remain faithful to the plain terms and clear intent of section 848. Thus, we believe that to be punished under section 848 one must meet all the requirements for a conviction under section 848. The Government did not establish these requirements in Paradiso’s case. Consequently, we reverse his Count Four conviction. IY. Amen’s Sentence Amen pleaded guilty to one count of conspiracy to possess and distribute heroin and two substantive counts of possession and distribution. He was sentenced to concurrent twenty-year terms on each count to run consecutively to a nine-year term previously imposed on him for conspiracy and distribution of heroin in the earlier incident involving Abbamonte and others. Amen argues that imposition of the maximum sentence of twenty years was arbitrary and capricious in light of his guilty plea and his status as a “lesser member of the conspiracy.” He also argues that it was “excessive” to make his twenty-year terms consecutive to his previous nine-year term which he claims arose out of the same factual conspiracy. Both of these claims are meritless. Indeed the Government is correct that the court omitted to impose an additional three-year special parole term in violation of 21 U.S.C. § 841(b)(1)(B). Amen’s only real objection is to Judge Carter’s statement that: “I suppose that it’s unfortunate that all of you are" }, { "docid": "23281947", "title": "", "text": "FRANK A. KAUFMAN, Senior District Judge: Thomas Sikes and John Weaver appeal from their convictions in the United States District Court for the Southern District of Florida and the sentences imposed upon them for conspiracy to import cocaine in violation of 21 U.S.C. § 963 and conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846. We affirm. On September 23, 1987, twenty-one defendants, including the two appellants, were indicted upon twenty-nine counts for various cocaine and marijuana offenses. The indictment contained twenty-one counts charging substantive cocaine-related offenses (Counts 1-3; 12-29). All twenty-one defendants were charged with one or more cocaine related offenses. Count One charged Sikes with conducting a criminal enterprise in violation of 21 U.S.C. § 848. Count Two charged Sikes and Weaver and seventeen other defendants with conspiracy to import at least one kilogram of cocaine, in violation of 21 U.S.C. § 963. Count Three charged all defendants with conspiracy to possess with intent to distribute at least one kilogram of cocaine in violation of 21 U.S.C. § 846. In addition to the cocaine counts, the indictment included eight counts charging eleven defendants, but not Sikes or Weaver, with substantive marijuana-related offenses (Counts 4-11). After certain defendants entered pleas of guilty, the case proceeded to trial against nine defendants, only two of whom, Robert Bradley and Norman Speck, were charged in any of the marijuana counts. After four and one-half days of trial, the court severed the marijuana charges and continued the trial as to the nine defendants solely with respect to the cocaine charges. At the conclusion of the trial, Sikes and Weaver were found guilty under Counts Two and Three. As to the other counts in which Sikes and Weaver were charged, the jury failed to reach verdicts. Weaver was sentenced to concurrent six-year terms of incarceration in connection with his convictions upon Counts Two and Three. Sikes was sentenced to two concurrent thirty-six year terms of imprisonment in connection with his convictions upon Counts Two and Three, those terms to run consecutively with a sentence imposed in a prior" }, { "docid": "22919524", "title": "", "text": "conviction, and the sentences imposed, were entered against the appellants as follows: Barbara Hinton — convicted on conspiracy count and on one telephone count; acquitted on second telephone count. Sentenced to two years imprisonment and a three year special parole term on Count 1; to a concurrent two year term of imprisonment on the telephone count. William Beckwith — convicted on conspiracy count and one telephone count. Sentenced to fifteen years imprisonment, a special ten year parole term, and a $25,000 fine on Count One; to a concurrent four year prison term on the telephone count. James W. Carter — convicted on conspiracy count. Sentenced to fifteen years imprisonment and a five year special parole term. Scarvey McCargo —convicted on conspiracy count. Sentenced to five years imprisonment and a five year special parole term. Charles W. Cameron —convicted on conspiracy count. Sentenced to eight years imprisonment, a five year special parole term, and a $5,000 fine. John Darby — convicted on conspiracy count and five telephone counts. Sentenced on Count One to fifteen years imprisonment, a five year special parole term, and a $25,000 fine; on Counts Four through Eight, to three years imprisonment, each consecutive to each other, but concurrent to Count One. Thelma Darby — convicted on conspiracy count; acquitted on telephone count. Sentenced to five years imprisonment, a five year special parole term, and a $25,000 fine. David C. Bates — convicted on conspiracy count and on one telephone count; acquitted of one telephone count. Sentenced to eight years imprisonment, a special parole term of five years, and a $5,000 fine on Count One; to a concurrent four year prison term on the telephone count. . Judge Mishler concluded that there was no need for a hearing as “there is no question in my mind that the Government used none of the testimony that she gave before the grand jury.” There is no evidence in the record, however, that the Government was ever required to affirmatively establish that the indictment was based on evidence fully independent of Hinton’s testimony. Judge Mishler further concluded, in agreement with the" }, { "docid": "23393854", "title": "", "text": "of imprisonment for fifteen years and consecutive fines of $125,000 on Counts Two through Four. The prison terms on Counts Two through Four are concurrent with the sentence under Count One. The aggregate sentence is forty-five years imprisonment and a $400,000 fine. Thomas Morris: Imprisonment for twenty years and a $25,000 fine on Count One. Larry Jackson: Imprisonment for twenty years and a $25,000 fíne on Count One; consecutive terms of imprisonment for fifteen years and consecutive $125,000 fines on Counts Two through Four; concurrent terms of imprisonment for five years on Count Six, and three years on Count Seven. All fines are cumulative; the sentence imposed on Count One is concurrent with the sentences imposed on Counts Two through Four. The aggregate sentence is imprisonment for forty-five years and a $400,000 fine. James Carter: Imprisonment for twenty years on Count One; imprisonment for fifteen years on Count Three; fines of $25,000 on Count One, and $125,000 on Count Three. The prison terms and fines are consecutive. The aggregate sentence is imprisonment for thirty-five years and a $150,000 fine. James H. Griffin: Consecutive terms of imprisonment for ten years on Counts Two and Three; consecutive fines of $50,000 on each Count. The aggregate sentence is imprisonment for twenty years and a $100,000 fine. James W. Griffin: Imprisonment for ten years and a $25,000 fine on Count Two. Suzette ' Jackson: Imprisonment for twenty years and a $25,000 fine on Count One; concurrent terms of imprisonment for fifteen years and consecutive fines of $125,000 on Counts Two and Three; imprisonment for five years and a $10,000 fine on Count Six, with the prison term to run concurrently with the sentence imposed on Count One but consecutively to the sentences imposed on Counts Two and Three. All fines are cumulative. The sentences imposed on Counts Two and Three are concurrent to that under Count One. The aggregate sentence is imprisonment for twenty years and a fine of $285,000. Joe Lightsey: Consecutive terms of imprisonment for fifteen years on Counts One through Three; cumulative fines of $25,000, $125,000 and $125,000 on these three" }, { "docid": "22378478", "title": "", "text": "Rule 32(c)(2)(E) calls for the provision of information concerning alternatives to prison “unless the court orders otherwise.” The failure to provide this information was called to the attention of the trial judge at the sentencing hearing, and he made it clear that he was not interested in such alternatives for Coffie. Similarly, even assuming some prejudice could result from the provision of advisory Sentencing Guidelines calculations in Coffie’s presen-tence report, the district court specifically disavowed any reliance upon those calculations. See Fed.R.Crim.P. 32(c)(3)(D). Conclusion The judgments of conviction are affirmed, except that the conviction of Reginald Velez on count fourteen of the superseding indictment for violation of 18 U.S.C. § 924(c)(1) (1988) is reversed, and the convictions of Victor Torres, George Torres and Nelson Flores on counts two, three and four, respectively, of the superseding indictment for violation of 21 U.S.C. §§ 848(a) and (b) (1982 & Supp. V 1987) are vacated and remanded for resen-tencing pursuant to 21 U.S.C. § 848(a) (1982 & Supp. V 1987). APPENDIX Summary of Sentences Imposed VICTOR Torres: Count one (21 U.S.C. § 846 (1988)). No sentence imposed. Offense included in count two. Count two (21 U.S.C. § 848(a) and (b) (1982 & Supp. V 1987)). Life imprisonment without parole, two million dollar fine. Count six (21 U.S.C. § 841(b) and (b)(1)(B) (1988)). Fifteen years imprisonment, four years supervised release, two million dollar fine; concurrent with sentence on count two (except as to fine). Count seven (21 U.S.C. § 841(b)(1)(B) (1988)). Fifteen years imprisonment, four years supervised release, two million dollar fine; consecutive to sentence on count six but concurrent with sentence on count two (except as to fine). Count eight (21 U.S.C. § 841(b)(1)(A) (1988)). Twenty years imprisonment, five years supervised release, four million dollar fine; consecutive to sentences on counts six and seven but concurrent with sentence on count two (except as to fine). Count nine (21 U.S.C. § 841(b)(1)(C) (1988)). Ten years imprisonment, three years supervised release, $600,000 fine; consecutive to sentences on counts six through eight but concurrent with sentence on count two (except as to fine). Count ten (21" }, { "docid": "23393853", "title": "", "text": "each of the counts with which they had been charged. Co-defendant Arlton Z. Jackson, charged only in Count Seven, was acquitted by the jury. All eleven of the convicted defendants appealed; the motion of appellant James Ricky Williams to dismiss his appeal was granted by this Court. . 18 U.S.C.A. § 1962(d) provides that: It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section. Appellants were charged with conspiring to violate 18 U.S.C.A. § 1962(c). Section 1962(c) provides that: It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt. . The United States District Court for the Southern District of Georgia imposed the following sentences: Lemuel Morris: Imprisonment for twenty years and a $25,000 fine on Count One; consecutive terms of imprisonment for fifteen years and consecutive fines of $125,000 on Counts Two through Four. The prison terms on Counts Two through Four are concurrent with the sentence under Count One. The aggregate sentence is forty-five years imprisonment and a $400,000 fine. Thomas Morris: Imprisonment for twenty years and a $25,000 fine on Count One. Larry Jackson: Imprisonment for twenty years and a $25,000 fíne on Count One; consecutive terms of imprisonment for fifteen years and consecutive $125,000 fines on Counts Two through Four; concurrent terms of imprisonment for five years on Count Six, and three years on Count Seven. All fines are cumulative; the sentence imposed on Count One is concurrent with the sentences imposed on Counts Two through Four. The aggregate sentence is imprisonment for forty-five years and a $400,000 fine. James Carter: Imprisonment for twenty years on Count One; imprisonment for fifteen years on Count Three; fines of $25,000 on Count One, and $125,000 on Count Three. The prison terms and fines are consecutive. The aggregate sentence is imprisonment for thirty-five years" }, { "docid": "3125888", "title": "", "text": "McLAUGHLIN, Circuit Judge: Christopher Moore was indicted on nine drug-related counts: conspiracy to distribute cocaine base (“crack cocaine”), in violation of 21 U.S.C. §§ 846, 841(b)(1)(A) (count one); distribution and possession with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), on August 30, 1991 (count two), on September 13, 1991 (count three), and on November 7, 1991 (count four); intentional use and carrying of firearms during and in relation to the drug conspiracy, in violation of 18 U.S.C. § 924(c)(1) (count five (a) through five (k)) (11 subcounts, each involving a different firearm) (“drug-related firearms count”); and possession of firearms with the manufacturer’s serial number removed and obliterated, in violation of 18 U.S.C. §§ 922(k), 924(a)(1) (counts six through nine) (“defaced serial numbers counts”). Following a jury trial, in the United States District for the Eastern District of New York (Charles P. Sifton, Chief Judge), Moore was found guilty on counts one, two, four, five, seven and nine. He was acquitted of counts three, six and eight. The court sentenced him to a prison term of life on count one, 20 years on counts two and four, five years on counts seven and nine, all of which run concurrently, and to a consecutive term of five years on count five. In addition, Moore received fines of $1 million on counts one, two and four, and $250,000 on counts five, seven and nine, all of which were imposed concurrently. On appeal, Moore’s most compelling argument is that the 100 to 1 sentencing ratio contained in 21 U.S.C. § 841(b) and U.S.S.G. § 2D1.1 (which equates the offense levels of 100 grams of powder cocaine and 1 gram of crack cocaine) violates equal protection. This Court has already held that the sentencing scheme does not violate equal protection under a rational basis review. United States v. Stevens, 19 F.3d 93 (2d Cir.1994). Moore now mounts an equal protection challenge to the sentencing scheme, arguing that Congress acted with a discriminatory purpose. Moore also appeals his conviction, contending that: (1) the district court abused its discretion by denying" }, { "docid": "23094665", "title": "", "text": "the indictment were distinct. V. Mark Deleonardis’ Sentence Deleonardis pleaded guilty to one count of conspiracy under 21 U.S.C. § 846, and six counts of distribution and possession with intent to distribute. He was sentenced to twenty years on Count One, an additional five years on Count Six, twenty years each on Counts Seven through Ten concurrently with Count One, a fine of $350, and lifetime parole. He now argues that this sentence violates the Eighth Amendment, citing Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), and quoting statistics regarding average sentences in the Southern District of New York and elsewhere. The evidence Deleonardis presents is similar to that in United States v. Ortiz, 742 F.2d 712 (2d Cir.), cert. denied, 469 U.S. 1075, 105 S.Ct. 573, 83 L.Ed.2d 513 (1984), where we upheld a ten-year prison term plus ten-year parole sentence for conviction of a single count of possession of heroin with intent to distribute. Even without considering the statistical evidence, Deleonardis’ total twenty-five year sentence for seven separate counts seems eminently reasonable in comparison to Ortiz and some of the cases cited therein. Ortiz, 742 F.2d at 717. Unpersuaded by Deleonardis’ Eighth Amendment argument, we affirm his sentence. VI. Other Issues Abbamonte argues that he was denied effective assistance of counsel because the district court denied his motion for adjournment. He contends that this deprived counsel of adequate time to prepare for trial and, in particular, to review the tape recordings. We disagree. The trial judge has broad discretion in deciding whether to grant a continuance. Morris v. Slappy, 461 U.S. 1, 11, 103 S.Ct. 1610, 1616, 75 L.Ed.2d 610 (1983). Only an “unreasoning and arbitrary ‘insistence upon expeditiousness in the face of a justifiable request for delay’ violates the right to the assistance of counsel.” Id. at 11-12, 103 S.Ct. at 1616 (citing Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964)). That is not this case. Judge Carter exercised sound discretion in denying Abbamonte’s motion for adjournment. The Government provided Abbamonte with tapes of the" }, { "docid": "23094637", "title": "", "text": "16, 1987, Judge Carter corrected the judgment to reflect his intention to impose the sentence on Count One consecutive to the term that Abbamonte was already serving for 1983 narcotics convictions. On January 15, 1987, Paradiso received consecutive twenty-year prison sentences on Counts One and Four. The evidence establishing a heroin enterprise run from the federal penitentiary at Lewisburg, Pennsylvania, consisted primarily of communications taped under the prison monitoring system. Paradiso and Abbamonte argue that the trial court improperly denied their motion to suppress these tapes (hereinafter the “Lewisburg tapes”). Abbamonte argues that there was insufficient evidence to establish that he operated a continuing criminal enterprise because the Government failed to establish that he acted in concert with five or more persons with respect to whom he occupied the position of organizer, supervisor, or manager. He contends that the only properly admitted evidence related to four such persons. Paradiso argues that he should not have been convicted for aiding and abetting Abbamonte’s continuing criminal enterprise because (A) he was not chargeable with such an offense, (B) the court’s instruction on aiding and abetting was erroneous, and (C) the evidence was insufficient to prove that he aided and abetted Abbamonte in the management and operation of a continuing criminal enterprise. Abbamonte also argues that he was denied effective assistance of counsel by virtue of a denial of a motion for adjournment. Amen and Deleonardis argue that their sentences violate the Eighth Amendment prohibition against cruel and unusual punishment. Abbamonte and Paradiso argue, and the Government concedes, that they should not have been sentenced on Count One, the conspiracy count, unless their respective convictions for operating a continuing criminal enterprise (“CCE”) and aiding and abetting such operation are overturned. United States v. Aiello, 771 F.2d 621, 632-35 (2d Cir.1985); United States v. Osorio Estrada, 751 F.2d 128, 134-35 (2d Cir. 1984), cert. denied, 474 U.S. 830, 106 S.Ct. 97, 88 L.Ed.2d 79 (1985). We affirm as to all appellants except that we reverse the judgment against Paradiso for aiding and abetting Abbamonte’s CCE and we “combine” Abbamonte’s conviction for conspiracy into the" }, { "docid": "22378483", "title": "", "text": "sentences on counts six through eleven and twenty-three but concurrent with sentence on count three (except as to fine). Count twenty-seven (26 U.S.C. § 7201 (1982)). Five years imprisonment, $50,000 fine; consecutive to sentences on counts six through eleven, twenty-three and twenty-five but concurrent with sentence on count three (except as to fine). Count twenty-nine (26 U.S.C. § 7201 (1982)). Five years imprisonment, $50,000 fine; consecutive to sentences on counts six through eleven, twenty-three, twenty-five and twenty-seven but concurrent with sentence on count three (except as to fine). Count thirty (21 U.S.C. § 853(a) (1988)). Forfeiture of most of the assets specified in the superseding indictment. Total SENTENCE: Life imprisonment without parole, twenty-two years supervised release, twelve million dollar fine, forfeiture of property in count thirty. Nelson FloRES: Count one (21 U.S.C. § 846 (1988)). No sentence imposed. Offense included in count four. Count four (21 U.S.C. § 848(a) and (b) (1982 & Supp. V 1987)). Life imprisonment without parole, two million dollar fine. Count six (21 U.S.C. § 841(b)(1)(B) (1988)). Twelve years imprisonment, four years supervised release; concurrent with sentence on count four. Count seven (21 U.S.C. § 841(b)(1)(B) (1988)). Twelve years imprisonment, four years supervised release; consecutive to sentence on count six but concurrent with sentence on count four. Count eight (21 U.S.C. § 841(b)(1)(A) (1988)). Sixteen years imprisonment, five years supervised release consecutive to sentences on counts six and seven but concurrent with sentence on count four. Count nine (21 U.S.C. § 841(b)(1)(C) (1988)). Ten years imprisonment, three years supervised release; consecutive to sentences on counts six through eight but concurrent with sentence on count four. Count ten (21 U.S.C. § 841(b)(1)(C) (1988)). Ten years imprisonment, three years supervised release; consecutive to sentences on counts six through nine but concurrent with sentence on count four. Count eleven (21 U.S.C. § 841(b)(1)(C) (1988)). Ten years imprisonment, three years supervised release; consecutive to sentences on counts six through ten but concurrent with sentence on count four. Count eighteen (21 U.S.C. § 924(c)(1) (1988)). Five years imprisonment, consecutive to all other terms of imprisonment. Count nineteen (21 U.S.C. § 856" }, { "docid": "21570901", "title": "", "text": "information?” Smith answered, “He said he got it from his mother.” Steele contends that Smith’s answer was impermissible hearsay. The jury convicted Wesson of one count of conspiracy to possess and to possess with intent to distribute controlled substances in violation of 21 U.S.C. § 846 and aiding and abetting that conspiracy in violation of 18 U.S.C. § 2 (count one); one count of engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848 (count two); two counts of using a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c) (counts three and twelve); nine counts of distributing heroin in violation of 21 U.S.C. § 841(a)(1), and aiding and abetting that distribution in violation of 18 U.S.C. § 2 (counts four through eight, ten, eleven, fifteen, and seventeen); three counts of using a communications facility in committing and in causing and facilitating the commission of a federal drug crime in violation of 21 U.S.C. § 843(b) (counts nine, sixteen, and eighteen); and four counts of money laundering in violation of 18 U.S.C. §§ 1956(a)(l)(B)(i) and (2) (counts nineteen through twenty-two). The court sentenced Wesson to concurrent sentences of life imprisonment on counts one and two; 240 months imprisonment on each of counts four, five, six, seven, eight, ten, eleven, fifteen, and seventeen; 48 months imprisonment on each of counts nine, sixteen, and eighteen; and 60 months imprisonment on each of counts nineteen through twenty-two. The court also sentenced Wesson to 60 months imprisonment on each of counts three and twelve to run consecutive to each other and to all other counts. Finally the court sentenced Wesson to supervised release for life, in the unlikely event that he ever got out of prison. The jury convicted Gloria Steele of one count of conspiracy to possess and to possess with intent to distribute controlled substances in violation of 21 U.S.C. § 846 and aiding and abetting that conspiracy in violation of 18 U.S.C. § 2 (count one); and four counts of money laundering in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and" }, { "docid": "23094636", "title": "", "text": "his continuing criminal enterprise in violation of 21 U.S.C. § 848 and 18 U.S.C. § 2. On January 14, 1987, Judge Carter sentenced Amen to a twenty-year prison term on Count One, to run consecutively to a nine-year prison term imposed by David N. Edelstein, United States District Judge, on July 22, 1986, for Amen’s conviction in United States v. Delvecchio and Amen, 86 Cr. 305 (S.D.N.Y.), aff'd in part, rev’d in part, 816 F.2d 859 (2d Cir.1987). In addition, Judge Carter sentenced Amen to concurrent twenty-year terms on Counts Seven and Eight. On the same day, Judge Carter sentenced Mark Deleonardis to a twenty-year prison term on Count One, a consecutive five-year prison term on Count Six, and concurrent twenty-year prison terms on each of Counts Five, Seven, Eight, Nine, and Ten. Judge Carter also imposed lifetime special parole on Deleonardis. On January 15, 1987, Judge Carter sentenced Abbamonte to life imprisonment on Count Three and imposed concurrent forty-year prison terms on each of Counts One, Seven, and Eight. In an endorsement dated January 16, 1987, Judge Carter corrected the judgment to reflect his intention to impose the sentence on Count One consecutive to the term that Abbamonte was already serving for 1983 narcotics convictions. On January 15, 1987, Paradiso received consecutive twenty-year prison sentences on Counts One and Four. The evidence establishing a heroin enterprise run from the federal penitentiary at Lewisburg, Pennsylvania, consisted primarily of communications taped under the prison monitoring system. Paradiso and Abbamonte argue that the trial court improperly denied their motion to suppress these tapes (hereinafter the “Lewisburg tapes”). Abbamonte argues that there was insufficient evidence to establish that he operated a continuing criminal enterprise because the Government failed to establish that he acted in concert with five or more persons with respect to whom he occupied the position of organizer, supervisor, or manager. He contends that the only properly admitted evidence related to four such persons. Paradiso argues that he should not have been convicted for aiding and abetting Abbamonte’s continuing criminal enterprise because (A) he was not chargeable with such an offense," }, { "docid": "13617804", "title": "", "text": "MINER, Circuit Judge: Gregory Scarpa, Jr., appeals from a judgment of conviction entered on February 27, 1989, after a jury trial, in the United States District Court for the Eastern District of New York (Glasser, J.). Defendant was found guilty of conducting a racketeering enterprise in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(c) (1988); engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848(a) (1982 & Supp. V 1987); conspiring to distribute marijuana in violation of 21 U.S.C. § 846 (1982); distributing marijuana in violation of 21 U.S.C. § 841(a)(1) (1982); and two counts of conspiring to commit extortion, and one count of extortion, in violation of 18 U.S.C. § 1951 (1988). Judge Glasser sentenced Scarpa to terms of imprisonment of twenty years on the RICO, continuing criminal enterprise, extortion and extortion conspiracy counts; five years on the conspiracy to distribute marijuana count; and five years on the distribution of marijuana count. Judge Glasser also sentenced Scarpa to a five year term of special probation on the distribution of marijuana count, and imposed a $350 special assessment covering all counts. All prison terms were concurrent. Scarpa contends on appeal that the district court erred in refusing to suppress statements he made after his arrest to an agent of the Drug Enforcement Administration (“DEA”). See United States v. Scarpa, 701 F.Supp. 379 (E.D.N.Y.1988). He asserts also that the district court erred in refusing to permit discovery of tape recordings made by law enforcement authorities using a hidden microphone, which the government contends, and the district court found, reveal neither incriminating nor exculpatory evidence relevant to his case. For the reasons that follow, we affirm. BACKGROUND Scarpa was named with eight co-defendants in an indictment filed on November 2, 1987, charging various crimes involving an organized marijuana distribution business, and the use of murder and extortion to advance their goals. Two superseding indictments were filed, one on December 14, 1987 and the second on January 27, 1988. In each indictment, Scarpa was named as the leader of the “Scarpa Crew,” a marijuana" }, { "docid": "23094663", "title": "", "text": "Consequently, we reverse his Count Four conviction. IY. Amen’s Sentence Amen pleaded guilty to one count of conspiracy to possess and distribute heroin and two substantive counts of possession and distribution. He was sentenced to concurrent twenty-year terms on each count to run consecutively to a nine-year term previously imposed on him for conspiracy and distribution of heroin in the earlier incident involving Abbamonte and others. Amen argues that imposition of the maximum sentence of twenty years was arbitrary and capricious in light of his guilty plea and his status as a “lesser member of the conspiracy.” He also argues that it was “excessive” to make his twenty-year terms consecutive to his previous nine-year term which he claims arose out of the same factual conspiracy. Both of these claims are meritless. Indeed the Government is correct that the court omitted to impose an additional three-year special parole term in violation of 21 U.S.C. § 841(b)(1)(B). Amen’s only real objection is to Judge Carter’s statement that: “I suppose that it’s unfortunate that all of you are before a judge who finds the plague that narcotics has caused to people and families and neighbors intolerable.” While this statement clearly indicates Judge Carter’s predisposition to sentence narcotics offenders heavily, the statute gives him this latitude. Moreover, he made the statement in the context of determining the weight to be given the personal remorse expressed by the defendants who, after all, were engaged in large-scale heroin purchases and sales over a long period of time. The case is thus distinguishable from United States v. Wardlaw, 576 F.2d 932, 936-38 (1st Cir. 1978), where a judge imposed a large sentence on a first-time drug carrier primarily because of its presumed effect on large-scale drug smugglers. As to the imposition of consecutive sentences, this case does not contain the “extraordinary set of circumstances” necessary to demonstrate that consecutive sentences are cruel and unusual. See United States v. Golomb, 754 F.2d 86, 90 (2d Cir. 1985). Although Amen’s prior conviction also involved business with Abbamonte, the time periods and membership of the two conspiracies as charged in" } ]

[ { "docid": "9614619", "title": "", "text": "is returned or by the magistrate when an arrest warrant issues; the amount is endorsed on the warrant. In the case of state offenses a common procedure is for a nonjudicial officer, such as the police desk sergeant, to set bail in accordance with a fixed schedule. Even in the federal system, magistrates do not always make the bail determination in open court. Their decision may also be made at home or in chambers. State magistrates sometimes fix amounts at the police station, or during telephonic communications with the jail. These informal procedures serve an important purpose. They allow the expeditious release of the defendant. Access to bail reduction hearings, however, should not be foreclosed because these proceedings lack the history of openness relied on by the Richmond Newspapers court. In Criden, the Third Circuit noted that the “relative importance of pretrial procedure to that of trial has grown immensely in the last two hundred years.” 675 F.2d at 555. Bail procedures have likewise become more significant. The Federal Bail Reform Act of 1966, Pub.L. No. 89-465, 80 Stat. 214-16 (1966) (codified at 18 U.S.C. §§ 3141-3156 (1976)), has been described as “the most significant legislative reform of the criminal process of this century.” Duke, Bail Reform for the Eighties, 49 Fordham L.Rev. 40, 46 (1980). Because the first amendment must be interpreted in the context of current values and conditions, Criden, 675 F.2d at 555; Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 386-95, 89 S.Ct. 1794, 1804-09, 23 L.Ed.2d 371, 386-92 (1969), the lack of an historic tradition of open bail reduction hearings does not bar our recognizing a right of access to such hearings. See BeVier, Like Mackerel in the Moonlight: Some Reflections on Richmond Newspapers, 10 Hofstra L.Rev. 311, 325-28 (1982). The first amendment right of access is, in part, founded on the societal interests in public awareness of, and its understanding and confidence in, the judicial system. Cri-den, 675 F.2d at 556. Moreover, public access is a check on judicial conduct and tends to improve the performance both of the parties and of the" } ]

[ { "docid": "22574781", "title": "", "text": "arrestees of that liberty interest may violate due process. See e.g., Campbell v. Johnson, 586 F.3d 835, 840 (11th Cir. 2009) (explaining that a county sheriff may be held liable for violating the due process rights of an arrestee if he acts with deliberate indifference in personally refusing to accept the arrestee’s court-set bail or if his actions were causally connected to his subordinates’ refusal of the arrestee’s bail); Doyle v. Elsea, 658 F.2d 512, 516-17 n. 6 (7th Cir.1981) (“For due process purposes, the constitutional liberty interest in release on bail arises after a magistrate has determined that an accused may be released upon deposit of whatever sum of money will ensure the accused’s appearance for trial.”). The district court concluded in this case that when Plaintiff was prevented from paying the bond set in his arrest warrant pursuant to these abovementioned policies, he “was unnecessarily detained without a legitimate goal (none is asserted) in violation of his due process rights.” Dodds, Order at *4, (July 9, 2009). For the following reasons, we agree. Defendant has yet to proffer any reason, let alone a “legitimate goal,” for refusing to allow Plaintiff to post bail and detaining Plaintiff for three days, other than the assertion that the longstanding policies or customs at the jail, allegedly set by either the court clerk or the district judges, prohibited individuals charged with a felony from posting bond until they had been arraigned by a judge and from posting bond after hours. Gaylor teaches that Plaintiffs liberty interest in being freed from pretrial detention once his bail had been set may not be denied just because an official says it has been his practice to do so for a long time and the practice of his predecessors for an even longer time. Gaylor, 105 F.3d at 576-77 (explaining that due process dictates that government officials may only interfere with an arrestee’s liberty interest in being freed from detention in a manner reasonably related “to a legitimate [governmental] goal, such as insuring his appearance for trial or protecting others from him”). We note Defendant’s counsel" }, { "docid": "20501515", "title": "", "text": "probable cause as a prerequisite to extended restraint of liberty following arrest,” 420 U.S. at 114, 95 S.Ct. 854, but explained that the probable cause determination can be made without an adversary hearing using the same standard as that for arrest— “probable cause to believe the suspect has committed a crime,” which is traditionally “decided by a magistrate in a nonadver-sary proceeding on hearsay and written testimony,” 420 U.S. at 120, 95 S.Ct. 854. Recognizing that state systems vary, Justice Powell explained that states may incorporate the probable-cause determination into other procedures, such as for setting bail or fixing other conditions of pretrial release, or may make the probable-cause determination when the suspect first appears before a judicial officer; “[w]hatever procedure a State may adopt, it must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty, and this determination must be made by a judicial officer either before or promptly after arrest.” 420 U.S. at 124-25, 95 S.Ct. 854 (footnotes omitted). In County of Riverside v. McLaughlin, the Supreme Court determined what constituted a “prompt” determination of probable cause. 500 U.S. at 47, 111 S.Ct. 1661. The County of Riverside, California, had combined the probable-cause determination with its arraignment procedures; although the county’s policy required conducting arraignments “without unnecessary delay and, in any event, within two days of arrest,” the rule excluded weekends and holidays from the two-day computation, meaning that “an individual arrested without a warrant late in the week may in some cases be held for as long as five days before re ceiving a probable cause determination. Over the Thanksgiving holiday, a 7-day delay is possible.” 500 U.S. at 47, 111 S.Ct. 1661. The Honorable Sandra Day O’Connor, Associate Justice, explained a split among the Courts of Appeals after Gerstein, in which the Fourth, Seventh, and Ninth Circuits required the probable-cause determination to be made “immediately following completion of the administrative procedures incident to arrest,” while the Second Circuit understood “Gerstein to stress the need for flexibility and to permit States to combine probable cause determinations with" }, { "docid": "9783236", "title": "", "text": "wants and holds within less than forty-eight hours — does not seem as weighty as the burden of establishing probable cause under a tight timeline. Compare McLaughlin, 500 U.S. at 53, 111 S.Ct. 1661 (explaining that the Court has stopped short of requiring immediate probable cause hearings because of “the burden that proliferation of pretrial proceedings places on the criminal justice system” and the fact that “the interests of everyone involved, including those persons who are arrested, might be disserved by introducing further procedural complexity into an already intricate system”), with Fowler v. Block, 2 F.Supp.2d 1268, 1279 (C.D.Cal.1998) (stating that “there is no reason why a check for wants and holds needs to occur after a person is released. As Plaintiffs counsel argued, those checks can occur at anytime between the original arrest and the case’s ultimate disposition.”), rev’d on other grounds, Fowler v. Block, 185 F.3d 866 (9th Cir.1999). Adopting the forty-eight hour rule into the context of post-release detentions would also directly conflict with at least one other circuit, which has found no zone of presumptive reasonableness in this context. In Lewis v. O’Grady, 853 F.2d 1366 (7th Cir.1988), the Seventh Circuit considered a plaintiffs § 1983 claim against the county for his eleven hour over-detention after his court-ordered release. The panel reversed the district court’s directed verdict in favor of the county. It held that, ‘What is a reasonable time for detaining a prisoner in custody is a question best left open for juries to answer based on the facts presented in each case.... It is for a jury to determine whether the 11 hours it took the sheriff to discharge Lewis was reasonable.” Id. at 1370. The defendants in Lewis provided evidence regarding the administrative and logistical reasons for the delay. Id. (describing the busing system, which left only every five hours, and the county jail’s responsibility for processing 600-800 prisoners returning from court each day). Acknowledging this evidence, the Lewis panel recognized that a “[r]ea-sonable time must be allowed for such matters as transportation, identity verification, and processing.” Id. But it found it is" }, { "docid": "14938831", "title": "", "text": "judicial proceeding that affects the “legal status” of the arrestee, constitutionally authorizing his detention throughout the proceedings against him, just as a guilty verdict affects his “legal status” by authorizing his detention for the duration of his sentence. Consistency with our pronouncement that “the legal status of the [plaintiff] determines [which a]mendment governs his excessive force claims”, Gravely, 142 F.3d at 349, requires extending the Fourth Amendment’s protection until this change in legal status occurs. Moreover, in Gerstein, the Supreme Court observed that “[b]oth the standards and procedures for arrest and detention have been derived from the Fourth Amendment and its common-law antecedents.” 420 U.S. at 111, 95 S.Ct. 854 (emphasis added). It continued: The consequences of prolonged detention [without a judicial determination of probable cause] may be more serious than the interference occasioned by arrest. ... When the stakes are this high, the detached judgment of a neutral magistrate is essential if the Fourth Amendment is to furnish meaningful protection from unfounded interference with liberty. Accordingly, we hold that the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest. Id. at 114, 95 S.Ct. 854. Gerstein held that this hearing must come “promptly after arrest.” Id. at 125, 95 S.Ct. 854. Citing Gerstein, both the Ninth and Tenth Circuits have reasoned that, because the Fourth Amendment controls the permissible duration of “warrantless, post-arrest, pre-arraignment custody,” it must also “apply to evaluate the condition of such custody.” Pierce, 76 F.3d at 1043 (internal citations omitted) (emphasis in original); accord Austin v. Hamilton, 945 F.2d 1155, 1160 (10th Cir.1991) (same). Additionally, establishing the line between Fourth and Fourteenth Amendment protection at the probable-cause hearing creates an incentive to hold the hearing as soon as possible, which is certainly beneficial to the judicial process. See County of Riverside v. McLaughlin, 500 U.S. 44, 58, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) (“Everyone agrees that the police should make every attempt to minimize the time a presumptively innocent individual spends in jail.”). We therefore join the Ninth and Tenth Circuits in setting the" }, { "docid": "15052317", "title": "", "text": "arrest, we will use a Fourth Amendment analysis. Gerstein v. Pugh, 420 U.S. 103, 111-14, 95 S.Ct. 854, 861-63, 43 L.Ed.2d 54 (1975); Hallstrom, 991 F.2d at 1480, 1484; see also Villanova v. Abrams, 972 F.2d 792, 797 (7th Cir.1992). Defendant Littles asserts that he is entitled to qualified immunity, and the district court so found. California Penal Code § 853.6 outlines the procedures for handling misdemeanor arrestees. It specifies that misdemeanor arrestees should be released without bail upon signing a written promise to appear. One exception to this rule occurs when there is a “reasonable likelihood” that the offense will continue. In a qualified immunity analysis, we must ask whether a reasonable officer in Littles’s circumstances could have believed that it was lawful to deny Mackinney a citation release. California law was clearly established — misdemeanor arres-tees were to be released upon signing a written promise to appear if they posed little risk of continuing their offense. If we accept Mackinney’s version of the facts, as we must when we review a summary judgment order, then a reasonable officer would have released Mackinney because he agreed to not write on the sidewalk. As discussed below, Supreme Court precedent regarding the Fourth Amendment prohibition against unnecessary detention was also clearly established. Lit-tles was not reasonable in thinking his detention of Mackinney until Mackinney’s “attitude” improved was lawful. Therefore, Lit-tles is not entitled to qualified immunity. We apply a Fourth Amendment analysis in determining the validity of a warrantless arrestee’s detention prior to a magistrate’s determination of probable cause to arrest. County of Riverside v. McLaughlin, 500 U.S. 44, 55-56, 111 S.Ct. 1661, 1669-70, 114 L.Ed.2d 49 (1991). In Hallstrom, 991 F.2d at 1479, we analyzed a claim of unreasonable detention. We noted that, under McLaughlin, when a plaintiff contests a detention that lasted under 48 hours, she bears the burden of proving that “her probable cause determination was delayed unreasonably.” Id. (quoting McLaughlin, 500 U.S. at 56, 111 S.Ct. at 1670). We further noted that one example the Supreme Court gave of an “unreasonable delay” is “delay motivated by ill" }, { "docid": "22098973", "title": "", "text": "claims of a class representative, insofar as they parallel class claims, should be resolved first because as a general rule class injuries attributable to members of a class but not sustained by a named class representative cannot be remedied in the class action lawsuit. Lewis v. Casey, — U.S. -, -, 116 S.Ct. 2174, 2183, 135 L.Ed.2d 606 (1996). See, however, County of Riverside v. McLaughlin, 500 U.S. 44, 50-52, 111 S.Ct. 1661, 1667, 114 L.Ed.2d 49 (1991) (noting exception to this rule when representative’s injury is mooted or otherwise nonjus-ticiable and the nature of the injury is inherently transitory). . Although not necessary to our resolution of this case, we observe that the magistrate judge’s conclusion that these “statutory factors\" must be considered in each instance by individual parole panels is unsupported by the plain language of the statute. Although these factors aré to be the basis under subsection 8(f)(5) of the \"parole guidelines” which the Board is directed to \"develop and implement,\" nothing in the statute suggests that a direct consideration of these factors is mandated in individual parole evaluations. Such a reading inflates the significance of these two factors to the detriment not only of the parole guidelines themselves but also of the other legislative limitations upon the Board's discretion, noted in our discussion in Subpart I, supra, and runs counter to this Circuit’s repeated holdings that the Texas parole scheme does not create a legitimate expectation of release or concomitant protected liberty interest. Compare Dace v. Mickelson, 816 F.2d 1277 (8th Cir.1987) (en banc) (discussing when state law requiring release upon finding of particular facts may create a cognizable liberty interest). We emphasize that this point is noted for elucidatory purposes only: in the absence of a cognizable constitutional violation, the situation herein presented, the interpretation and implementation of the Texas parole statute is a matter for the appropriate state agencies and not this Court. . Nor do we find prisoners qua prisoners to be such a classification insofar as the parole statute is concerned. While it is evident that prisoners are a \"class” within the" }, { "docid": "23195279", "title": "", "text": "hours of arrest will, as a general matter,” suffice unless the prisoner can prove unreasonable delay. County of Riverside v. McLaughlin, 500 U.S. 44, 56-57, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991); but see id. at 71, 111 S.Ct. 1661 (Scalia, J., dissenting) (“Hereafter a law-abiding citizen wrongfully arrested may be compelled to await the grace of a Dickensian bureaucratic machine, as it churns its cycle for up to two days — never once given the opportunity to show a judge that there is absolutely no reason to hold him, that a mistake has been made.”). This 48-hour standard is well-established. State courts and local police and jail officers comply with it routinely. A law-abiding citizen who has been misidentified is therefore vulnerable to only a relatively brief detention before he may insist on having a judge take a close look at a claimed misidentification. The process due to a parolee arrested on a charge of parole violation is quite different. In such cases, a preliminary hearing “to determine whether there is probable cause” to detain the arrestee need be held only “as promptly as convenient after arrest while information is fresh and sources are available.” Morrissey v. Brewer, 408 U.S. 471, 485, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). In Atkins’ case, it was a full seven days before he had even that preliminary hearing. Delays as long as 24 days between the arrest and even the preliminary hearing are constitutionally permissible, even without any showing of emergency or extraordinary circumstance. See Faheem-El v. Klincar, 841 F.2d 712, 714-15, 723 (7th Cir.1988) (en banc). While the probable cause determination “should be made by someone not directly involved in the case,” the hearing officer “need not be a [neutral and detached] judicial officer” and may be an administrative official such as a parole officer. Morrissey, 408 U.S. at 485-86, 92 S.Ct. 2593. The reason we tolerate the slower and different procedures for parolees is precisely because they are parolees. They have already been convicted of a crime through the full processes of the criminal law. Their interest in liberty is" }, { "docid": "20520003", "title": "", "text": "Procedure 12(b)(6). See Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir.2009). We review a challenge to the constitutionality of a statute de novo as well. See United States ¶. Gonzales, 307 F.3d 906, 909 (9th Cir.2002). III. The plaintiffs contend that the Proposition 100 laws violate substantive due process. We agree. A. The Supreme Court has long recognized constitutional limits on pretrial detention. The Court has prohibited excessive bail, see Stack v. Boyle, 342 U.S. 1, 4-5, 72 S.Ct. 1, 96 L.Ed. 3 (1951), required a judicial determination of probable cause within 48 hours of arrest, see Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991); Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), barred punitive conditions of pretrial confinement, see Bell v. Wolfish, 441 U.S. 520, 535-37, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), prohibited pretrial detention as punishment, see United States v. Salerno, 481 U.S. 739, 746-48, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987); Schall v. Martin, 467 U.S. 253, 269-74, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984), and held that restrictions on pretrial release of adult arrestees must be carefully limited to serve a compelling governmental interest, see Salerno, 481 U.S. at 748-51, 107 S.Ct. 2095. In the first of these cases, Stack v. Boyle, the Court observed that the “traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction.” 342 U.S. at 4, 72 S.Ct. 1. The Court noted that, “[u]nless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning,” id., and it held that “[b]ail set at a figure higher than an amount reasonably calculated to fulfill [its] purpose [of assuring the presence of the accused at trial] is ‘excessive’ under the Eighth Amendment,” id. at 5, 72 S.Ct. 1. In Gerstein v. Pugh, the Court recognized that “[p]retrial confinement may imperil the suspect’s job, interrupt his source of income, ... impair his family" }, { "docid": "11187717", "title": "", "text": "an absolute minimum time to meet all potential circumstances which might exist.” Id. at 1370. ■ To the extent Brass’s claim rests on the County’s policy or custom of not starting to process a particular day’s releases until it has received all information, including wants and holds, relating to the prisoners scheduled for release, we cannot say the County thereby violated Brass’s constitutional rights. To the contrary, we think that that aspect of the County’s release program was justified and reasonable in light of the County’s problems and responsibilities in processing the large number of prisoner releases it handles. In dismissing this case, the district court relied significantly on the fact that the 39-hour delay here was less than the 48-hour delay that the Supreme Court had sanctioned in County of Riverside v. McLaughlin, 500 U.S. 44, 58-59, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). McLaughlin involved the permissible delay between a warrantless arrest and a probable cause determination. The Court there stated: “In Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), this Court held that the Fourth Amendment requires a prompt judicial determination of probable cause as a prerequisite to an extended pretrial detention following a warrantless arrest. This case requires us to define what is ‘prompt’ under Gerstein.” 500 U.S. at 47, 111 S.Ct. 1661. The Court stated that “some delays are inevitable” where jurisdictions “incorporate probable cause determinations into other pretrial procedures.... [Tjhere will be delays caused by paperwork and logistical problems. Records will have to be reviewed, charging documents drafted, appearance of counsel arranged, and appropriate bail determined. On weekends, when the number of arrests is often higher and available resources tend to be limited, arraignments may get pushed back even further.” Id. at 55, 111 S.Ct. 1661. The Court concluded: a jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein. For this reason, such jurisdictions will be immune from systemic challenges. This is not to say that the probable cause determination in a particular" }, { "docid": "21064654", "title": "", "text": "that certain delays, at least those of a day or two, are per se reasonable. Yet it remains the case that “[cjourts have not settled on any concrete number of permissible hours of delay in the context of post-release detentions.” Berry, 379 F.3d at 771. The operative word there is “hours”: the great weight of precedent suggests that release must occur within a matter of hours after the right to it accrues, and that after some period of hours — not days — a presumption of unreasonableness, and thus unconstitutionality, will set in. The District continues to mistakenly rely on County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) as allowing it a 48-hour window in which to tend to administrative matters. In McLaughlin the Court ruled that delays of 48 hours or more between arrest and a probable cause hearing were presumptively unreasonable, and that defendants whose hearings took place less than 48 hours after arrest had to establish unreasonableness on a case-by-ease basis. In the case of probable cause hearings, the administrative burdens on the state are far greater than in this ease, and the societal interest at issue — determining whether there is probable cause that a crime has been committed — is far greater than the societal interest in a case like this. In a case such as this, the only societal interests that justify delay are ensuring that prisoners are not released if they have other detainers or warrants, and efficient marshaling of scarce resources. Furthermore, at issue in McLaughlin was the procedural, albeit very important, right to a prompt probable cause hearing. In a case such as this one, the issue is the prisoner’s absolute right to freedom. For these reasons, the point at which overdetention becomes presumptively unreasonable is likely to fall well short of the 48-hour window in McLaughlin. See Berry, 379 F.3d at 771-73 (analyzing McLaughlin in the context of ov-erdetention); Brass v. County of Los Ange-les, 328 F.3d 1192 (9th Cir.2003) (same); Lewis v. O’Grady, 853 F.2d 1366 (7th Cir. 1988) (rejecting possibility that" }, { "docid": "19023973", "title": "", "text": "112 S.Ct. 2572 (the second inquiry is whether the policy “transgresses any recognized principle of ‘fundamental fairness’ in operation”). There is nothing unfair about being given the choice to pay a reasonable fine to resolve the charge of a petty offense, particularly where the payer has ninety days to think it over and change his mind, and the payment, once final, does not result in a record of conviction. The post-and-forfeit policy also satisfies the Mathews test. Mr. Fox offers two potential private interests that are at issue here: 1) the arrestee’s interest in the small collateral sum of money, and 2) his interest in regaining his liberty. As to the first, the interest is weak because it is a very small amount of money at stake. Next, the risk of an erroneous deprivation is very small. If the arrestee thinks that his arrest has been made without probable cause, he is not required to pay. And moreover, even if he does choose to pay, he has ninety days afterward to determine — either on his own or after consulting an attorney — that he should have challenged the charge and to move to set aside the forfeiture and proceed with the charge against him. The addition of a pre-deprivation hearing, therefore, would not lower the risk of an erroneous deprivation very much, if at all. Finally, the government has legitimate interests in preventing overcrowding of its jails, and not expending its limited resources on prosecuting petty offenses. So, the deprivation of property here does not warrant any additional procedure. Furthermore, the alternative to payment — remaining in jail until being presented for a preliminary hearing — does not warrant additional procedure. County of Riverside v. McLaughlin, 500 U.S. 44, 55-56, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) establishes that the Fourth Amendment permits the reasonable postponement of a probable cause determination, even up to forty eight hours. Mr. Fox’s complaint does not allege that the post-and-forfeit policy increases the time it takes an arrestee who chooses not to post and forfeit to obtain a probable cause determination, let alone" }, { "docid": "11524900", "title": "", "text": "run the criminal justice system is simply not a compelling enough reason to allow the deprivation of a fundamental right. The state should not be permitted to deny or inhibit or penalize access to a procedure it has already determined a defendant is eligible to use—the right to exercise the option of pretrial release on bail—especially where, as here, meaningful access to the bail system involves such important liberty interests. Therefore, based on the proffered state interests, we find that there is no way to construe the statute to avoid the constitutional infirmity. III. Is the 2% charge a “fee” or a “tax”? The state also implores us to validate the challenged statutes, urging that the 2% charge is a “fee” which is incidental to a service provided to those benefiting from the administration of the bail system. Citing Schilb v. Kuebel, 404 U.S. 357, 92 S.Ct. 479, 30 L.Ed.2d 502 (1971), the state maintains that the 2% retention provisions are merely administrative in nature, that the charge is made to all arrestees, and that the charge is intended to cover the costs of safekeeping and administering bonds and sending out appearance notices and the like. The statute addressed Schilb, however, is entirely different from the statutes challenged in the present case. In Schilb, the Supreme Court evaluated the validity of a cost retention statute stipulated to have been enacted for the purpose of reforming the traditional bail bond scheme. The Court noted: Prior to 1964 the professional bail bondsman system with all its abuses was in full and odorous bloom in Illinois. Under that system the bail bondsman customarily collected the maximum fee (10% of the amount of the bond) permitted by statute ... and retained that entire amount even though the accused fully satisfied the conditions of the bond____ Payment of this substantial “premium” was required of the good risk as well as of the bad. The results were that a heavy and irretrievable burden fell upon the accused, to the excellent profit of the bondsman, and that professional bondsmen, and not the courts, exercised significant control over" }, { "docid": "22240260", "title": "", "text": "whether the Fourth Amendment continues to protect an arrestee during the second custodial stage, post-arrest but pre-arraignment. We find the discussions in Austin, 945 F.2d at 1158-60, and Powell v. Gardner, 891 F.2d 1039, 1043-44 (2d Cir.1989), persuasive. Individuals who have been arrested without a warrant and brought to a detention facility are subject to custodial detention involving isolation in a cell interspersed with the various administrative procedures of the booking process prior to arraignment or a probable cause hearing. We are persuaded by precedent which applies the Fourth Amendment standard to assess the constitutionality of the duration of or legal justification for a prolonged warrantless, post-arrest, pre-arraignment custody, see, e.g., County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991); Gerstein v. Pugh, 420 U.S. 103, 125, 95 S.Ct. 854, 868, 43 L.Ed.2d 54 (1975); Hallstrom, 991 F.2d at 1477-83, that the Fourth Amendment should also apply to evaluate the condition of such custody. See Austin, 945 F.2d at 1158-60; Powell, 891 F.2d at 1043-44. We hold, therefore, that the Fourth Amendment sets the applicable constitutional limitations on the treatment of an arrestee detained without a warrant up until the time such arrestee is released or found to be legally in custody based upon probable cause for arrest. Accordingly, we conclude that the trial court erred by failing to direct the jury to apply Fourth Amendment objective reasonableness standards to the use of force against Pierce at the jail. We reverse the jury verdict for defendants Karcher and Bowdle. III. Directed Verdict for Bowdle on Pierce’s Fourth Amendment Unreasonable Seizure Claim Pierce also claims that the magistrate erred by directing a verdict on Pierce’s Fourth Amendment claim against Bowdle for unreasonable seizure. We find that this claim has merit. Pierce alleged that Bowdle violated her Fourth Amendment rights by seizing her and returning her to a cell after she had been released from the detention center. The magistrate directed a verdict for the defendant based on Pierce’s own testimony which indicated that she was still in the process of being released. However, we do" }, { "docid": "21021635", "title": "", "text": "854, 43 L.Ed.2d 54 (1975). Finally, respondents concede and the Court of Appeals noted that an arrestee may be incarcerated until trial if he presents a risk of flight, see Bell v. Wolfish, 441 U.S. 520, 534, 99 S.Ct. 1861, 1871, 60 L.Ed.2d 447 (1979) or a danger to witnesses. Salerno, 481 U.S. at 748-49, 107 S.Ct. at 2102-03 (emphases added). We note that although Gerstein v. Pugh allows an individual to be held without bail without a showing that he is either a flight risk or a danger to the community, the detention may last only as long as is required to obtain a hearing before a magistrate, and in no event longer than 48 hours absent extraordinary circumstances. County of Riverside v. McLaughlin, 500 U.S. 44, 57, 111 S.Ct. 1661, 1670, 114 L.Ed.2d 49 (1991). . In Paretti's case, no treaty obligation to surrender him had yet arisen at the time of his ''provisional\" arrest because France had 40 more days under the Treaty to make up its mind whether to request his surrender. . One commentator has made the following poignant comment about the special circumstances doctrine: So long as the accused poses no threat to the community, the national interests are fully served if the accused does not abscond. That the accused presents \"special circumstances” adds nothing to protection of these interests. Conversely, if the accused is likely to flee, the governmental interests are vulnerable, no matter what the \"special circumstances.” Note, A Recommended Approach to Bail in International Extradition Cases, 86 Mich. L.Rev. 599, 614 (1987). REINHARDT, Circuit Judge, concurring: I concur in Judge Norris’s opinion for the court, completely with respect to the Fourth Amendment analysis and in large part with respect to the Fifth Amendment discussion. While I agree unequivocally with all of the conclusions expressed in that opinion, I write separately regarding the due process question in order to offer a perspective on the subject that is different in a few respects, but in my view serves only to bolster the opinion’s rationale. Parretti asks us to consider for the first time" }, { "docid": "4819061", "title": "", "text": "to the almost identical provisions of the Fifth Amendment. Id. (citing Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1954)). Overdetentions potentially vio late the substantive component of the Due Process Clause by infringing upon an individual’s basic liberty interest in being free from incarceration absent a criminal conviction. See Oviatt, 954 F.2d at 1474. This liberty interest is deeply rooted: “[fjreedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.” Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992). Even if an inmate’s initial confinement was justified by a constitutionally adequate basis, that confinement cannot constitutionally continue once that basis no longer exists. See id. at 757,107 S.Ct. 2095. Temporarily retaining custody over an inmate who is entitled to release in order to accomplish administrative tasks incident to that release is not per se unconstitutional. Lewis v. O’Grady, 853 F.2d 1366, 1370 (7th Cir.1988) (“We recognize that the administrative tasks incident to a release of a prisoner may require some time to accomplish — in this case perhaps a number of hours.”). However, courts recognize that inmates’ due process rights may be violated if they are not released within a reasonable time after the reasons for their detentions have ended. Brass v. County of Los Angeles, 328 F.3d 1192, 1200 (9th Cir.2003); Golberg v. Hennepin County, 417 F.3d 808, 811 (8th Cir.2005). Courts have declined to adopt a bright-line rule for the maximum permissible delay in the overdetention context. Berry v. Baca, 379 F.3d 764, 771 (9th Cir.2004). This contrasts ’ with the Supreme Court’s approach, in the Fourth Amendment context, to detentions pending probable cause determinations after warrantless arrests, where the Court adopted a 48-hour rule. County of Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). In McLaughlin, the Court recognized that States “have a strong interest in protecting public safety by taking into custody those persons who are reasonably suspected of having engaged in criminal activity, even where" }, { "docid": "5501812", "title": "", "text": "demonstrate standing separately for each form of relief sought. Lyons, 461 U.S. at 109, 103 S.Ct. 1660. For compensatory at damages, standing is satisfied by demonstrating that the plaintiff has suffered a personal injury which is fairly traceable to defendant’s allegedly unlawful conduct and which is likely to be redressed by the requested relief. County of Riverside v. McLaughlin, 500 U.S. 44, 50, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). For injunctive relief, plaintiff must also demonstrate that she is in real and immediate danger of sustaining future, direct injury as a result of official conduct ongoing at the time of the suit. Lyons, 461 U.S. at 102, 103 S.Ct. 1660. In addition, Plaintiff must demonstrate that the Article III requirements continue to be met throughout the case, that the “requisite personal interest that must exist at the commencement of the litigation (standing) ... continue throughout its existence (mootness).” Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n. 22, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (quoting United States Parole Comm’n v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980), in turn quoting Monagháns “Constitutional Adjudication: The Who and When,” 82 Yale L.J. 1363, 1384 (1973)) (internal quotation marks omitted). An Article III court may only adjudicate live, ongoing controversies. Honig v. Doe, 484 U.S. 305, 317, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). Defendant Suffolk County does not challenge Mack or Plaintiffs’ standing to seek compensatory damages. It does challenge their standing to seek injunctive relief for two reasons. First, it claims that their fear of being strip-searched again is speculative, depending upon the possibility of another arrest, and pretrial detention. Second, it claims that the issue is moot because it voluntarily changed its strip-search policy on May 24, 1999, after this lawsuit had started, to allow strip-searches of women held on misdemeanors only upon a finding of probable cause to believe the arrestee was concealing weapons or contraband. On September 20, 1999, the Defendant went even further, changing its policy to require a probable cause finding for all strip-searches, including those of" }, { "docid": "12399366", "title": "", "text": "to say that because the police can hold an arrestee for up to 48 hours without bringing him before a judge, see County of Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991), the fact of custodial arrest justifies extra deprivations of liberty or property. Unlike the temporary limits on the arrestee’s freedom of movement in the hours before he can see a judge, the $30 fee is not an inevitable consequence of custodial arrest. Finally, Judge Posner suggests (at page 551) that the plaintiff here doesn’t really have much to complain about. The fee could have been constitutional under a different ordinance, such as one written to impose the fee only after a plea or judgment of guilty, and this plaintiff admitted the offense here. The first problem with that suggestion is that that’s not what the village did. The second problem is that the right to fair procedure applies to the innocent and guilty alike. E.g., Carey v. Piphus, 485 U.S. 247, 266, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) (“the right to procedural due process is ‘absolute’ in the sense that it does not depend upon the merits of a claimant’s substantive assertions”). IV. The Plaintiffs Standing to Sue A majority of the court agrees that the plaintiff has standing to challenge the village’s policy. Judge Sykes takes a different view in her opinion and would instead remand the case to the district court to dismiss for lack of standing. Judge East-erbrook agrees with her in part. Because the plaintiff pleaded guilty to shoplifting, and the government can impose fines on those who are found guilty of a crime, Judge Sykes would hold that the plaintiffs injury of being charged the $30 is “not fairly traceable to the Village’s allegedly unconstitutional conduct.” Sykes, J., at page 29. This approach confuses the merits of the plaintiffs claim with his standing to bring it, and the approach is based on a different ordinance or policy than the one actually before us. Standing is an inquiry separate from the merits and is not a difficult" }, { "docid": "13848588", "title": "", "text": "Accordingly, the defendants have qualified immunity from plaintiffs Fourth Amendment claim. FOURTEENTH AMENDMENT CLAIM Plaintiff also argues that the defendants violated her right to procedural due process when the booking officer, Deputy Bill Fancher, on orders from Detective Hatcher, did not allow plaintiff to immediately telephone her father after her arrest. Plaintiff admits that she was informed several times that she could phone an attorney. Detective Hatcher feared that allowing plaintiff to call her father would jeopardize the ongoing investigation, including a search of her father’s property. In the end, plaintiff did not call anyone and was otherwise booked according to procedure. Plaintiff claims that the failure to allow her to call her father violates T.C.A. § 40-7-106(b), which states in relevant part: No person under arrest ... shall have his name entered on any ... record until such time that the person has successfully completed a telephone call to an attorney, relative, minister or any other person that he shall choose, without undue delay. One (1) hour shall constitute a reasonable time without undue delay. However, if the arrested person does not choose to make a telephone call, then he shall be “booked” or docketed immediately. Plaintiff argues that this statute “creates” a right under the Fourteenth Amendment Due Process Clause. Appellee’s Brief at 13. This argument is in error. A state statute cannot “create” a federal constitutional right. Some state statutes may establish liberty or property interests protected by the Due Process Clause, but this statute creates neither a federally protected liberty or property interest. Federal law governs the obligation of officers under the Due Process- Clause in according arrestees the right to counsel and the right of presentment to a magistrate. See, e.g., County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) (arrestees must be presented to magistrate within 48 hours of warrantless arrest for probable cause determination). If states could vary these federal constitutional rights by statute or local ordinance, the federal constitutional law governing arrest would vary from state to state and from city to city. The right to" }, { "docid": "14938832", "title": "", "text": "judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest. Id. at 114, 95 S.Ct. 854. Gerstein held that this hearing must come “promptly after arrest.” Id. at 125, 95 S.Ct. 854. Citing Gerstein, both the Ninth and Tenth Circuits have reasoned that, because the Fourth Amendment controls the permissible duration of “warrantless, post-arrest, pre-arraignment custody,” it must also “apply to evaluate the condition of such custody.” Pierce, 76 F.3d at 1043 (internal citations omitted) (emphasis in original); accord Austin v. Hamilton, 945 F.2d 1155, 1160 (10th Cir.1991) (same). Additionally, establishing the line between Fourth and Fourteenth Amendment protection at the probable-cause hearing creates an incentive to hold the hearing as soon as possible, which is certainly beneficial to the judicial process. See County of Riverside v. McLaughlin, 500 U.S. 44, 58, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) (“Everyone agrees that the police should make every attempt to minimize the time a presumptively innocent individual spends in jail.”). We therefore join the Ninth and Tenth Circuits in setting the dividing line between the Fourth and Fourteenth Amendment zones of protection at the probable-cause hearing. In this case, it is undisputed that the beating and tasing took place in the middle of the booking procedure, because Aldini’s photograph had not yet been taken, and prior to a probable-cause hearing. Thus, the district court erred in applying the Fourteenth Amendment standard to an arrestee detained following a warrantless arrest prior to a probable-cause hearing. B. Was the Error Harmless? As noted above, actions that do not violate the Fourteenth Amendment’s shock-the-conscience standard may nevertheless violate the Fourth Amendment’s reasonableness standard for excessive force. See Darrah, 255 F.3d at 306 (“A substantially higher hurdle must be surpassed to make a showing of excessive force under the Fourteenth Amendment than under the ‘objective reasonableness’ test of [the Fourth Amendment].... ”). Thus, while force found to shock the conscience under the Fourteenth Amendment will necessarily violate the Fourth Amendment’s reasonableness test, force that does not shock the conscience may nevertheless be unreasonable under the Fourth Amendment. The Fourth Amendment’s" }, { "docid": "16809659", "title": "", "text": "that they had been discounted to take into account claims upon which\" Mr. Willis had not prevailed, the district court found Mr. Willis’ requested figure to' be reasonable. 784 F.Supp. 1360. On February 10, 1992, the court awarded $139,350.43 in attorneys’ fees to Mr. Willis. The City now appeals both the district court’s finding of unconstitutional detention and the award of attorneys’ fees. This court has consolidated the City’s appeals. II ANALYSIS A. The Constitutionality, of Mr. Willis!. Extended Detention In Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), the Supreme Court held that, following a warrantless arrest, the Fourth Amendment requires a prompt judicial determination of probable cause before an arrestee may be subjected to extended pretrial detention. This holding acknowledges that prolonged pretrial detention occasions serious interference with liberty rights. Id. at 114, 95 S.Ct. at 863. A judicial assessment of probable cause is thus necessary to guard against illegitimate interference with those rights. In County of Riverside v. McLaughlin, — U.S.-, -, 111 S.Ct. 1661, 1668, 114 L.Ed.2d 49 (1991), the Court noted that Gerstein sought to balance the law enforcement interest in taking suspected criminals into custody, even when there has been no opportunity for a prior judicial determination of probable cause, against the possibility that detention founded upon an incorrect suspicion of wrongdoing may adversely affect the arrestee’s job, income, and family relationships. Thus, Ger-stein was a “ ‘practical compromise’ between the rights of individuals and the rights of law enforcement.” McLaughlin, — U.S. at -, 111 S.Ct. at 1668. In McLaughlin, the Supreme Court defined the “promptness” requirement of Gerstein. The Court acknowledged that, because Gerstein allows the incorporation of judicial probable cause determinations into other pretrial procedures, some types of delay are simply unavoidable. McLaughlin, — U.S. at -, 111 S.Ct. at 1669. Thus, the regular problems confronting police when processing arrestees through the overcrowded criminal justice- system may give rise to delays that are not deemed to violate the Fourth Amendment; Id. McLaughlin stated that a policy providing for a judicial probable cause determination within 48 hours" } ]

[ { "docid": "22552229", "title": "", "text": "Me. Justice Field, after stating the case, delivered the opinion of the court. The first question to be considered on the appeal relates to the effect to be given to the findings of_ fact and of law contained in the report of the special master. The court below refused to treat them as presumptively correct, so as to impose upon the excepting parties the burden of showing error in them. • It considered the case as presented on the pleadings and proofs, without reference to the report, to which there was accorded only the weight due to the careful and well considered opinion of a lawyer chosen by the parties to act as a judge, with qualifications to justify the selection. What that weight was, and in what appreciable way it could affect the judgment of the court, does not appear. A master in chancery is an officer appointed by the court to assist it in various proceedings incidental to the progress of a cause before it, and is usually employed to take and state accounts, to take and report testimony, and to perform such duties as require computation of interest, the value of annuities, the amount of damages in particular cases, the auditing and ascertaining of liens upon property involved, and similar services.. The information which he may communicate by his findings in such cases, upon the evidence presented to him, is merely advisory to the court, which it may accept and act upon or disregard in whole or in part, according to its own judgment as to the weight of the evidence. Basey v. Gallagher, 20 Wall, 670, 680; Quinby v. Conlan, 104 U. S. 420, 424. In practice it is not usual for the court to reject the report of a master, with his findings upon the matter referred to him, unless exceptions are taken to them and brought to its attention, and, upon examination, the findings are found unsupported or defective in some essential particular. Medsker v. Bonebrake, 108 U. S. 66; Tilghman v. Proctor, 125 U. S. 136, 149; Callaghan v. Myers, 128 U. S." } ]

[ { "docid": "22226121", "title": "", "text": "these wit nesses, the creditor and the bankrupt, were seen and heard by the referee, and he has credited their evidence and allowed this debt. No arbitrary rule can be laid down for determining the weight which should be attached to a finding of fact by a bankrupt referee. His position and duties are analogous, however, to those of a special master directed to take evidence and report his conclusions, and the rule applicable to a review of a referee’s finding of fact must be substantially that applicable to a master’s report. Tilghman v. Proctor, 125 U. S. 137, 8 Sup. Ct. 894, 31 L. Ed. 664; Davis v. Schwartz, 155 U. S. 631, 15 Sup. Ct. 237, 39 L. Ed. 289; Emil Kiewert & Co. v. Juneau, 78 Fed. 708, 24 C. C. A. 294; Tug River Co. v. Brigel, 86 Fed. 818, 30 C. C. A. 415. Much in both cases must depend upon the character of the finding. If it be a deduction from established fact, the finding would not carry any great weight, for the judge, having the same facts, may as well draw inferences or deduce a conclusion as the referee. But, if the finding is based upon conflicting evidence involving questions of credibility and the referee has heard the witnesses, much greater weight naturally attaches to his conclusion, and the weight of authority is that the district judge, while scrutinizing with care his conclusions upon a review, should not disturb his finding unless there is most cogent evidence of a mistake and miscarriage of justice. Roveland on Bankruptcy, § 32a; In re Swift (D. C.) 118 Fed. 348; In re Rider (D. C.) 96 Fed. 811; In re Waxelbaum (D. C.) 101 Fed. 228; In re Stout (D. C.) 109 Fed. 794; In re Miner (D. C.) 117 Fed. 953. In this case the conclusions of the referee necessarily involved the credibility of the witnesses who testified to the bona fides of the claim preferred by Charles Mack, Sr. The conclusion he reached in favor of the validity of his debt has also passed" }, { "docid": "14405000", "title": "", "text": "master to report the testimony in full to the court, together with his findings of fact and law.” Appellant now urges that, inasmuch as questions of invention and patentable novelty are questions of factj the master’s findings with respect thereto. are conclusive and should have been adopted by the District Court. This contention is based on Kimberly v. Arms, 129 U. S. 512, 9 S. Ct. 355, 32 L. Ed. 764, Davis v. Schwartz, 155 U. S. 631, 15 S. Ct. 237, 39 L. Ed. 289. The force and effect of .a master’s findings of fast depend on the nature of the case and of the questions of fact involved, and the terms of the reference. See Dickinson vi Thum (6 C. C. A.) 8 F.(2d) 570, where these differences are stated and the authorities collected and cited. The question here is whether the order of reference falls within the principles of Kimherly v. Arms or within the principles of some pf the other cases, particularly Oteri v. Scalzo, 145 U. S. 578-589, 12 S. Ct. 895, 36 L. Ed. 824; Denver v. Denver Union Water Co., 246 U. S. 178, 38 S. Ct. 278, 62 L. Ed. 649. In Kimberly v. Arms, it was said, in substance, that a reference of an entire case for a determination of all its issues cannot be made without the consent of parties, and, when so made by such consent, the reference is in the nature of a submission of the controversy to a tribunal of the parties’ own selection, and that the findings of a tribunal thus selected are not to be set aside and disregarded at the mere discretion of the court. Even so, it is further said, such findings, while presumptively correct, are subject to review when there has been manifest error in the consideration given to the evidence or in the application of the law, but not otherwise. It was accordingly held that the master’s findings should have been treated as correct and binding and not disturbed “unless clearly in conflict with the weight of the evidence upon which" }, { "docid": "18964933", "title": "", "text": "to the second hearing, it must be confessed that only reasonably clear and convincing evidence contradicting the Layman schedule would be sufficient to sustain the burden resting uppn the defendant. Furthermore, the court cannot shut its eyes to the well-established rule that— “So far as it depends upon conflicting testimony, or upon the credibility of witnesses, or so far as there is any testimony consistent with the finding, it [the master’s report] must be treated as unassailable.” Davis v. Schwartz, 155 U. S. 631-636, 15 Sup. Ct. 237, 239 (39 L. Ed. 289). See, also, Tilghman v. Proctor, 125 U. S. 136, 8 Sup. Ct. 894, 31 L. Ed. 664; Adamson v. Gilliland, 242 U. S. 350, 37 Sup. Ct. 169, 61 L. Ed. 356. To review the evidence offered by the defendant upon the question as to the number of infringing transformers would be fruitless. Any deductions from the Layman schedule would have to be based upon guesswork. In reaching this conclusion, we give to the Layman schedule and stipulation only that weight and consideration to which it is entitled as an item of evidence in this case. Much has been said by counsel about type M being noninfringing, and stress is laid upon the claim that type M was of the same construction as was the device before Judge Adams, who held ([C. C.] 129 Fed. 604) that it did not infringe. The transformer before Judge Adams did not have spaces; but, bearing in mind the fact that having spaces involved absolutely no change in structure, except to omit the space plates or plugs, adding additional iron plates, if desired, it may easily be seen that, of any two type M transformers made on the same day, one might infringe and the other not. M was a prominent type. It was included in the Layman schedule. No reason is suggested by any witness why spacing was not used in M as in others of the same size. That a change in M was made is indicated in the catalogue statement that from December 1, 1902, defendant was prepared" }, { "docid": "18965000", "title": "", "text": "last master that not a particle of oral or other evidence was introduced before him. He simply took the printed and written pages of the old record just as now before us. In the foregoing opinion it is said: “Furthermore, the court cannot shut its eyes to the well-established rule that, ‘so far as it depends upon conflicting testimony, or upon the credibility of witnesses, or so far as there is any testimony consistent with the finding, it [the master’s report] must be treated as unassailable.’ ” The rule in the opinion above quoted was taken from Davis v. Schwartz, 155 U. S. 631, 15 Sup. Ct. 237, 39 L. Ed. 289. The reference to the master in that case was by consent of the parties, instead of being made by the court under the ordinary chancery practice. Because of that fact the Supreme Court applied the doctrine of Kimberly v. Arms, 129 U. S. 512, 9 Sup. Ct. 355, 32 L. Ed. 764. That this is so appears from the next succeeding sentence in the report from which the quotation was taken. The Supreme Court said further: “As the reference in this case was by consent to find the facts, we think the rule in Kimberly v. Arms applies, and as there is nothing to show that the findings of fact were unsupported by the evidence, we think they must be treated as conclusive.” Of course, that is not the case here; the reference was under the general practice, to which a far different rule of presumption applies. The doctrine of Kimberly v. Arms is well known in federal practice. As stated by Mr. Justice Field, it is: “A master in chancery is an officer appointed by the court to assist it in various proceedings incidental to the progress of a cause before it, and is usually employed to take and state accounts, to take and report testimony, and to perform such duties as require computation of interest, the value of annuities, the amount of damages in particular cases, the auditing and ascertaining-of liens upon property involved, and similar" }, { "docid": "15040728", "title": "", "text": "rule is clearly stated by Mr. Justice Brown in Davis v. Schwartz, 155 U. S. 636, 15 Sup. Ct. 237: “As the case was referred by the court te a master to report, not the evidence merely, hut the facts of the case, and his conclusion of law thereon, we thinlr his finding, so far as it involves questions of fact, is attended by a presumption of correctness, similar to that in the case of finding by a referee, the special verdict of a jury, the findings of a circuit court under Rev. St. § 649, or in an ad mivalty cause appealed to this court. In neither of those casos is the finding absolutely conclusive, as if there be no testimony to support it. But so far as it depends on conflicting testimony or upon the credibility of witnesses, or so far as there is any testimony consistent with finding, it must be treated as unassailable.” Applying this rule to the case before us, we must consider as established die facts found by the commissioner, that the injury to the libelant was caused by defective appliances used in loading the ship, without any contributory negligence on bis part. These facts being established, the question remains, is the ship responsible? This depends upon the construction of the charter party. The charter party was fo-r a lump sum, and only the freight room was hired; so the ownership of the vessel remained in the original owner, and the master and crew continued to be his servants. Serutlon, Charter Parties. 8. The charter party provides: •‘Charterers arc to pay for loading cargo and compressing cotton in presses at loading point, but no other charges, and the stevedore to he appointed by them, wlio is to load steamer under captain's directions. Charterers are not, to be held responsible for improper stowage.” Ho, although the cost of loading cargo and the selection of the stevedore are in the charterers, the work of loading and the stevedore himself are to be under the captain’s directions. In other words, at no time does the master lose" }, { "docid": "22234860", "title": "", "text": "fact by a bankrupt referee. His position and duties are analogous, however, to those of a'special master directed to take evidence and report his conclusions, and the rule applicable to a review of a referee’s findings of fact must be substantially that applicable to a master’s report. Tilghman v. Proctor, 125 U. S. 137, 8 Sup. Ct. 894, 31 L. Ed. 664; Davis v. Schwartz. 155 U. S. 631, 15 Sup. Ct. 237, 39 L. Ed. 289; Emil Kiewert & Co. v. Juneau, 78 Fed. 708, 24 C. C. A. 294; Tug River Co. v. Brigel, 86 Fed. 818, 30 C. C. A. 415. Much in both cases must depend upon the character of the finding. If it be a deduction from established fact, the finding would not carry any great weight, for the judge, having the same facts, may as well draw inferences or deduce a conclusion as the referee. But, if the finding is based upon conflicting evidence involving questions of credibility, and the referee has heard the witnesses, much greater weight naturally attaches to his conclusion, and the weight of authority is that the district judge, while scrutinizing with care his .conclusions upon review, should not disturb his findings! unless there is most cogent evidence of a mistake and miscarriage of justice. Doveland on Bankruptcy, § 32a; In re Swift (D. C.) 118 Fed. 348; In re Rider (D. C.) 96 Fed. 811; In re Waxelbaum (D. C.) 101 Fed. 228; In re Stout (D. C.) 109 Fed. 794; In re Miner (D. C.) 117 Fed. 953. In this case the conclusions of the referee necessarily involved the credibilify of the witnesses who testified to the bona tides of the claim preferred by Charles Mack, Sr. The conclusion he reached in favor of the validity of his debt has also passed the scrutiny of the district judge. Under such circumstances, this court is not warranted in overturning the conclusions of two courts upon anything less than a demonstration of plain mistake.” It is the rule which has_obtained in this circuit, and we again affirm it in order" }, { "docid": "18965003", "title": "", "text": "I think we should observe them here. To surrender the trial of a case to a master and to treat his report as unassailable approaches an abdication of judicial functions. The results, so far as a review is concerned, are similar to those of the trial of an action at law by a District Court without a jury. Neither can be done without the expressed consent of the parties. In Mastin v. Noble, 157 Fed. 506, 85 C. C. A. 98, Judge Adams, speaking for this court, said: “The reference to the special master to find the facts and conclusions of law was not made by consent of the parties. Accordingly his report is not clothed with that presumption in. its favor which attends reports made on reference by consent. The trial court could not of its own motion abdicate its proper function or delegate it to any 'other person. The report, therefore, could be treated, as the record clearly shows the Circuit Court did treat it, as advisory only.” In Guarantee Gold Bond, etc., Co. v. Edwards, 164 Fed. 809, 90 C. C. A. 585, Judge Sanborn said for the court: “The next contention is that, since the case was referred to the master by consent, and since his finding that the deed was not procured fraudulently, and was not intended as a mortgage, was founded upon conflicting evidence, it was unassailable, and the courts below erred in reversing it under the decision in Kimberly v. Arms, 129 U. S. 512, 516, 524, 9 Sup. Ct. 355, 32 L. Ed. 764, and Davis v. Schwartz, 155 U. S. 631, 633, 637, 15 Sup. Ct. 237, 39 L. Ed. 289. But in those and similar cases, where the rule here invoked prevailed the parties consented to the references to the masters, while in this case the reference was made by a general order before the suit was commenced, without the knowledge or consent of any one connected with it. The fact that the parties to this suit proceeded with the prosecution of it under this general order without objection was" }, { "docid": "12488832", "title": "", "text": "to the superiority of their liens. The burden of proof was on Dyke Bros, to establish the conversation on which they relied by a fair preponderance of testimony, and they had no' preponderance, for Kelley’s testimony stands uncontradicted in the case by any witness except Dyke. More credence is and ought to be given to a disinterested than to an interested witness, and Kelley had no interest while Dyke’s claim was at stake upon his testimony. The finding of a fact dependent upon conflicting testimony by a judge, a master, or a referee, who sees and hears the witnesses testify, has every reasonable presumption in its favor, and may not be set aside and modified unless it clearly appears that there was an error or mistake upon his part. Tilghman v. Procter, 125 U. S. 136, 149, 8 Sup. Ct. 894, 31 L. Ed. 664; Callaghan v. Myers, 128 U. S. 617, 666, 9 Sup. Ct. 177, 32 L. Ed. 547; Clyde v. Railroad Co. (C. C.) 59 Fed. 394, 399; Missouri Pac. Ry. Co. v. Texas & Pac. Ry. Co. (C. C.) 33 Fed. 803, 806; Hennessey v. Budde (C. C.) 82 Fed. 541, 542. And where by agreement of the parties a referee or special tribunal is selected, or by consent parties submit to him their controversies for determination, his finding of the facts “so far as it depends upon conflicting testimony, or upon the credibility of witnesses, or so far as there is any testimony consistent with the finding, must be treated as unassailable.” Davis v. Schwartz, 155 U. S. 631, 636, 637, 15 Sup. Ct. 237, 39 L. Ed. 289; Kimberly v. Arms, 129 U. S. 512, 9 Sup. Ct. 355, 32 L. Ed. 764; Crawford v. Neal, 144 U. S. 585, 596, 12 Sup. Ct. 759, 36 L. Ed. 552; Furrer v. Ferris, 145 U. S. 132, 12 Sup. Ct. 821, 36 L. Ed. 649. The holders of these liens selected this referee as a special tribunal, and consented that the questions of fact and of law, which conditioned the rank of their liens, should" }, { "docid": "13238136", "title": "", "text": "circumstances, the findings of faet of the special master, so far as they depend “upon conflicting testimony, or upon the credibility of witnesses, or so far as there is any testimony consistent with the finding, * * • must be treated as unassailable.” Davis v. Schwartz, 155 U. S. 631, 636, 15 S. Ct. 237, 239, 39 L. Ed. 289. In the last cited case, at page 637 of 155 U. S., 15 S. Ct. 237, 239, the Supreme Court further said: “The question of the eonelusiveness of findings by a master in chancery under a similar order was directly passed upon in Kimberly v. Arms, 129 U. S. 512, 9 S. Ct. 355 [32 L. Ed. 764], in whieh a distinction is drawn between the findings of a master under the usual order to take and report testimony, and his findings when the case is referred to him by consent of parties, as in this ease. While it was held that the court could not, of its motion, or upon the request of one party, abdicate its duty to determine by its own judgment the controversy presented, and devolve that duty upon any of its officers, yet, where the parties select and agree upon a special tribunal for the settlement of their controversy, there is no reason why the decision of such tribunal, with respect to the facts, should be treated as of less weight than that of the court itself, where the parties expressly waive a jury, or the law declares that the appellate court shall act upon the finding of a subordinate court. “ 'Its findings,’ said the court, 'like those of an independent tribunal, are to be taken as presumptively correct, subject, indeed, to be reviewed, under the reservation contained in the consent and order of the court, when there has been manifest error in the consideration given to the evidence, or in the application of the law, but not otherwise.’ ” See, also, Ladd & Tilton Bank v. Boyle (C. C. A. 9) 299 F. 56, 57. The special master in the instant case was" }, { "docid": "1425607", "title": "", "text": "labor and furnished material as such subcontractors, to have filed mechanics’ liens, but declares itself unadvised as to the amounts, nature, or extent of such claims or liens, “and defendant unites with plaintiff in asking that these other defendants who have been made parties be required to prove their accounts and their respective priorities, etc., before one of the masters of this court.” This was but a simple demand that proper proof be required of the subcontractors as to the character, amount, and priorities of their respective claims, and in no way bound the hotel company to abide by the master’s judgment as to the substantial matters in controversy between it and the plaintiff contractor. We therefore conclude this reference to be a simple one directed by the court itself, and that the court below did not err in fully reviewing the master’s findings of both law and fact. While this is true, there are some simple principles universally approved by appellate courts touching these reports, confirmed by the court below, which should not be overlooked when we come to review the case. These principles are very well set forth in Crawford v. Neal, 144 U. S. 585, at page 596, 12 Sup. Ct. 759, at page 762, 36 L. Ed. 552, where it is said: “The cause was referred to a master to take testimony therein, ‘and to report to this court his findings of fact and his conclusions of law thereon.’ This he did, and the court, after a review of the evidence, concurred in his findings and conclusions. Clearly, then, they are to be taken as presumptively correct, and unless some obvious error has intervened in the application of the law, or some serious or important mistake has been made in the consider ation of flip evidence, the decree should stand.” Citing Tilghman v. Proctor, 125 U. s. 136, 8 Sup. Ct. 894, 31 L. Ed. 664; Kimberly v. Arms, 129 U. S. 512, 9 Sup. Ct. 355, 32 L. Ed. 764; Evans v. State Bank, 141 U. S. 107, 11 Sup. Ct. 885, 35 L. Ed." }, { "docid": "18965004", "title": "", "text": "Co. v. Edwards, 164 Fed. 809, 90 C. C. A. 585, Judge Sanborn said for the court: “The next contention is that, since the case was referred to the master by consent, and since his finding that the deed was not procured fraudulently, and was not intended as a mortgage, was founded upon conflicting evidence, it was unassailable, and the courts below erred in reversing it under the decision in Kimberly v. Arms, 129 U. S. 512, 516, 524, 9 Sup. Ct. 355, 32 L. Ed. 764, and Davis v. Schwartz, 155 U. S. 631, 633, 637, 15 Sup. Ct. 237, 39 L. Ed. 289. But in those and similar cases, where the rule here invoked prevailed the parties consented to the references to the masters, while in this case the reference was made by a general order before the suit was commenced, without the knowledge or consent of any one connected with it. The fact that the parties to this suit proceeded with the prosecution of it under this general order without objection was not a request for or a consent to the order; it was nothing but a compliance with it, and the case does not fall under the rule applicable to cases of consent.” In International Harvester Co. v. Carlson, 217 Fed. 736, 133 C. C. A. 430 (a bankruptcy case), Judge Amidon said for the court: “Such a reference, however, is not by consent, and the report of the referee can be treated as advisory only”—citing Kimberly v. Arms and Davis v. Schwartz. See, also, Babcock v. De Mott, 160 Fed. 882, 88 C. C. A. 64, 67. Were this not enough, reference might be made to Denver v. Denver Union Water Co., 246 U. S. 178, 38 Sup. Ct. 278, 62 L. Ed. 649. Justice Pitney said: “In our opinion, the District Court erred in declining to pass upon the questions raised by the exceptions. Although no. opinion was filed, the ruling appears to have been based upon the theory that, because the order of reference was made by consent of parties, the conclusions of" }, { "docid": "18965008", "title": "", "text": "authority for the rule there quoted. The reference was an ordinary one, the evidence, including oral testimony, was heard by the master, and his report was confirmed by the trial court. Even so, the Supreme Court, upon an extended consideration of the evidence, rejected the master’s conclusion upon a branch of the case, saying: “Much of the testimony on which he chiefly relies was in the record upon which the case had been previously heard before this court, * * 0 of which the court then said: ‘We have examined the evidence on this point, and are satisfied that it shows the objection to be unfounded.’ ” This excerpt is rather pertinent to the case at bar. Part of the evidence before the last master was before this court oh the first appeal, when, the-character of plaintiff's patent claim and of defendant’s additions were discussed, and all of it in the record on the second appeal, when we decided that the hearing contemplated had not been given by the first master on the second reference and definitely expressed our view upon the evidence affecting the Eayman schedule. Adamson v. Gilliland, 242 U. S. 350, 37 Sup. Ct. 169, 61 L. Ed. 356. also cited in the foregoing opinion, was a case of a finding of fact by a District Judge upon oral testimony of witnesses before him. It is true that Justice Holmes cites Davis v. Schwartz as authority for the doctrine of unassailability of a finding so made, but it was probably inadvertent, as Davis v. Schwartz was a reference by consent of parties as pointed out by Justice Pitney in the later case (246 U. S. 178, 38 Sup. Ct. 278, 62 L. Ed. 649), in which the doctrine in question is discussed and distinguished. A number of reasons are recited for imposing the twofold burden of proof (as to the number of infringing transformers and profits) upon the defendant. But, as I have said, the reasons are not stated distrib utively, and some appear without relation to both subjects jointly. It is said first: “The infringing element" }, { "docid": "14404999", "title": "", "text": "unfair trade and competition that it should be enjoined from using those words in marketing its product. Upon adequate exceptions and after full hearing, the District Judge sustained the master’s findings of fact and conclusions of law with respect to the validity and infringement of plaintiff’s trade-mark and with respect to the unfair trade and competition, but disapproved certain of the master’s findings of fact and conclusions of law with respect to the validity and infringement of the several patent claims in issue. A decree in defendant’s favor to the effect above stated, was entered. Defendant acquiesced in the decision and decree so far as the same was adverse to it. Plaintiff prosecutes this appeal for the purpose of reversing the decision and decree so far as the same relates to the patent claims held invalid or not infringed. The order of reference was entered by consent of parties. The reference' was for “the purpose of the taking of testimony therein on all issues and on behalf of the plaintiff and the said defendant, the master to report the testimony in full to the court, together with his findings of fact and law.” Appellant now urges that, inasmuch as questions of invention and patentable novelty are questions of factj the master’s findings with respect thereto. are conclusive and should have been adopted by the District Court. This contention is based on Kimberly v. Arms, 129 U. S. 512, 9 S. Ct. 355, 32 L. Ed. 764, Davis v. Schwartz, 155 U. S. 631, 15 S. Ct. 237, 39 L. Ed. 289. The force and effect of .a master’s findings of fast depend on the nature of the case and of the questions of fact involved, and the terms of the reference. See Dickinson vi Thum (6 C. C. A.) 8 F.(2d) 570, where these differences are stated and the authorities collected and cited. The question here is whether the order of reference falls within the principles of Kimherly v. Arms or within the principles of some pf the other cases, particularly Oteri v. Scalzo, 145 U. S. 578-589, 12 S." }, { "docid": "18964999", "title": "", "text": "be surmounted only by clear and convincing evidence. Then, again, the opinion refers to the findings of fact upon three references to masters and to the rule as to the credence to be given in such cases. The rule is not applicable. The first report of the first master was held by the Supreme Court insufficient for a decree under the circumstances of the hearing before him. After the case came back, it was again referred to him, and the additional evidence, was adduced. This court set aside that master’s second report because he misconceived his duties; and, upon the assumption that the Layman schedule was an estoppel, and that he could not allow the additional evidence to impair the force and effect of the evidence upon the first hearing, had in effect given no rehearing at all. I have already referred to the third reference to the last master with considerable detail. But, so far as concerns the rule as to findings of masters, it is sufficient to say of the findings of the last master that not a particle of oral or other evidence was introduced before him. He simply took the printed and written pages of the old record just as now before us. In the foregoing opinion it is said: “Furthermore, the court cannot shut its eyes to the well-established rule that, ‘so far as it depends upon conflicting testimony, or upon the credibility of witnesses, or so far as there is any testimony consistent with the finding, it [the master’s report] must be treated as unassailable.’ ” The rule in the opinion above quoted was taken from Davis v. Schwartz, 155 U. S. 631, 15 Sup. Ct. 237, 39 L. Ed. 289. The reference to the master in that case was by consent of the parties, instead of being made by the court under the ordinary chancery practice. Because of that fact the Supreme Court applied the doctrine of Kimberly v. Arms, 129 U. S. 512, 9 Sup. Ct. 355, 32 L. Ed. 764. That this is so appears from the next succeeding sentence in" }, { "docid": "18965005", "title": "", "text": "not a request for or a consent to the order; it was nothing but a compliance with it, and the case does not fall under the rule applicable to cases of consent.” In International Harvester Co. v. Carlson, 217 Fed. 736, 133 C. C. A. 430 (a bankruptcy case), Judge Amidon said for the court: “Such a reference, however, is not by consent, and the report of the referee can be treated as advisory only”—citing Kimberly v. Arms and Davis v. Schwartz. See, also, Babcock v. De Mott, 160 Fed. 882, 88 C. C. A. 64, 67. Were this not enough, reference might be made to Denver v. Denver Union Water Co., 246 U. S. 178, 38 Sup. Ct. 278, 62 L. Ed. 649. Justice Pitney said: “In our opinion, the District Court erred in declining to pass upon the questions raised by the exceptions. Although no. opinion was filed, the ruling appears to have been based upon the theory that, because the order of reference was made by consent of parties, the conclusions of the master were not open to question. Kimberly v. Arms, 129 U. S. 512, 524, and Davis v. Schwartz, 155 U. S. 631, 633, 636, are cited in support, but they are distinguishable. In the former case, the reference, made by consent of the parties, authorized the master to hear the evidence and decide all the issues between them, and it was because of this that the court held the findings were not merely advisory, as in the ordinary case, but were to be taken as presumptively correct,” etc. • He then added that the order of reference to which the parties consented showed that the master’s report was for the “advisement of the court.” In the case at bar the trial court has twice expressed in decided terms its dissatisfaction with tire reports of the masters (second and third references), and it would be somewhat extraordinary to find that, having sent the case to them for its advisement, it had constituted subordinate tribunals whose reports “must be treated as unassailable.” Generally speaking, such references," }, { "docid": "11671329", "title": "", "text": "ever had any such interest. The case was altogether one of fact. The result depended upon conclusions to be reached on issues of fact alone. It was referred to Clifford Histed, Esq., as special master, to take the ' testimony and report the same, together with his findings of fact and conclusions of law, to the court. The evidence was taken, and the-special master found the facts adversely to complainants and recommended that the bill be dismissed. The Circuit Court reviewed the-findings so made, examined the proof, and concurred in the result reached by the master and entered a decree dismissing the bill. From this decree complainants appeal. The reference to the special master to find the facts and conclusions of law was not made by consent of the parties. Accordingly his report is not clothed with that presumption in its favor which-attends reports made on reference by consent. The trial court could not of its own motion abdicate its proper function or delegate it to-any other person. The report, therefore, could be treated, as the record clearly shows the Circuit Court did treat it, as advisory only. Kimberly v. Arms, 129 U. S. 512, 523, 9 Sup. Ct. 355, 32 L. Ed. 764;. Oteri v. Scalzo, 145 U. S. 578, 12 Sup. Ct. 895, 36 L. Ed. 824; Davis v. Schwartz, 155 U. S. 631, 15 Sup. Ct. 237, 39 L. Ed. 289; Blythe v. Thomas (D. C.) 45 Fed. 784. However this may be, we cannot overlook the intrinsic and persuasive value of the report. It shows unusual attention and thoroughness of consideration, and doubtless-was of considerable aid to the court. The record also shows that the trial judge patiently heard the case de novo on exceptions to the report, and reached an independent judgment on the proof. There was no pro forma action on his part. We have, then, the deliberate-judgment of the trial court on the disputed facts of the case. Under w-ell-settled authority, this must be taken as presumptively correct, and should be followed, unless an obvious error has occurred in the application of law," }, { "docid": "5361349", "title": "", "text": "testimony, unless it clearly appeared that the finding and conclusion was either unsupported by the evidence or clearly against the.weight of the evidence. It is not enough that the court thinks it might itself have arrived at a different conclusion. It must be satisfied on the record that the referee or special master was wrong in his conclusions. In this case this court cannot so say or find. It was a fair question of fact for the special master, who, as stated, saw and,, heard the witnesses, to decide. The following cases indicate clearly the duty of the court in dealing with a question of fact, where the evidence conflicts, or different inferences may be drawn from a given or conceded state of facts: In re Knaszak (D. C.) 18 Am. Bankr. Rep. 187, 151 Fed. 503; In re Forth (D. C.) 18 Am. Bankr. Rep. 186, 151 Fed. 951; In re Simon & Sternberg (D. C.) 18 Am. Bankr. Rep. 204, 151 Fed. 507; In re Wheeler (C. C. A. 7th Circuit) 21 Am. Bankr. Rep. 262, 165 Fed. 188, 91 C. C. A. 222; In re Hodge (D. C.) 205 Fed. 824; Gibson v. Samples (In re Harvey) 202 Fed. 743, 121 C. C. A. 620; Haines v. First National Bank, 203 Fed. 225, 121 C. C. A. 431; Davis v. Schwartz, 155 U. S. 631, 638, 15 Sup. Ct. 237, 239, 39 L. Ed. 289; Kimberley v. Ames, 129 U. S. 512, 524, 9 Sup. Ct. 355, 359, 32 L. Ed. 764; Singleton v. Felton, 101 Fed. 527, 42 C. C. A. 57. I think, therefore, that the report and findings of the special master should be approved and confirmed, and that there should be an order accordingly." }, { "docid": "15040727", "title": "", "text": "in chancery in references to them. The reference was with the written consent of parties, and was presented to and made by the court as the result of such consent. The same regard must be had for the findings of the commissioner under these circumstances as would have been shown to the findings in a report of a master in chancery. The conclusions of a master on matters of fact are, under all circumstances, entitled to great respect. Medsker v. Bonebrake, 108 U. S. 71, 2 Sup. Ct. 351; Tilghman v. Proctor, 125 U. S. 149, 8 Sup. Ct. 894; Callaghan v. Myers, 128 U. S. 666, 9 Sup. Ct. 177. And when, as in this case, both parties present to the court a consent order providing for a report by the master of his conclusions upon the facts and the law, the court will not disturb his conclusions of fact, unless they are clearly in conflict with the weight of the evidence. Kimberly v. Arms, 129 U. S. 524, 9 Sup. Ct. 355. The rule is clearly stated by Mr. Justice Brown in Davis v. Schwartz, 155 U. S. 636, 15 Sup. Ct. 237: “As the case was referred by the court te a master to report, not the evidence merely, hut the facts of the case, and his conclusion of law thereon, we thinlr his finding, so far as it involves questions of fact, is attended by a presumption of correctness, similar to that in the case of finding by a referee, the special verdict of a jury, the findings of a circuit court under Rev. St. § 649, or in an ad mivalty cause appealed to this court. In neither of those casos is the finding absolutely conclusive, as if there be no testimony to support it. But so far as it depends on conflicting testimony or upon the credibility of witnesses, or so far as there is any testimony consistent with finding, it must be treated as unassailable.” Applying this rule to the case before us, we must consider as established die facts found by the" }, { "docid": "22234859", "title": "", "text": "‘of the value of $28,686.34,’ and by striking out also the words, ‘and still withholds.’ And, as it is also desirable to fix another time within which the order is to be obeyed, I substitute July 25, 1913, for ‘forthwith.’ Thus modified, the order is affirmed.” The findings of the referee were made by him after he had taken a large amount of conflicting testimony covering every phase of. the alleged withholding of property by the bankrupt, and when he had the opportunity to and did see the witnesses who testified. His findings, as has been decided over and over again, ought not to be disturbed except where it is demonstrated that a plain mistake has been made. This rule is so forcibly stated in Ohio Valley Bank Co. v. Mack, 163 Fed. 155, 89 C. C. A. 605, 24 L. R. A. (N. S.) 184, by Judge Lurton, that we quote it at some length: “No arbitrary rule can be laid down for determining the weight which should be attached to a finding of fact by a bankrupt referee. His position and duties are analogous, however, to those of a'special master directed to take evidence and report his conclusions, and the rule applicable to a review of a referee’s findings of fact must be substantially that applicable to a master’s report. Tilghman v. Proctor, 125 U. S. 137, 8 Sup. Ct. 894, 31 L. Ed. 664; Davis v. Schwartz. 155 U. S. 631, 15 Sup. Ct. 237, 39 L. Ed. 289; Emil Kiewert & Co. v. Juneau, 78 Fed. 708, 24 C. C. A. 294; Tug River Co. v. Brigel, 86 Fed. 818, 30 C. C. A. 415. Much in both cases must depend upon the character of the finding. If it be a deduction from established fact, the finding would not carry any great weight, for the judge, having the same facts, may as well draw inferences or deduce a conclusion as the referee. But, if the finding is based upon conflicting evidence involving questions of credibility, and the referee has heard the witnesses, much greater weight naturally" }, { "docid": "13238135", "title": "", "text": "admitted that “there were no industries located on the property of Emma Rose at the time of the construction of the track in question. * * “ ” The master found that “the territory involved in the present proceeding” contains approximately 23,300 acres; that “said territory is new territory which has not heretofore been served by the defendant railroad”; and that “the territory into which said track will extend easterly of the plaintiff’s railroad and between plaintiff’s railroad and the Bay of San Francisco, and extending from the City of South San Francisco to Redwood City is unoccupied and undeveloped, there being’ at the present time no .industry or settlement which requires railroad service at this time, nor which will, apparently, require railroad service in the immediate future.” Counsel for both parties agreeing, a special master was appointed “to take the testimony and report the findings of fact and con- elusions of law to the Court.” The-master’s findings and conclusions were later adopted as those of the court, and his report was confirmed. Under such circumstances, the findings of faet of the special master, so far as they depend “upon conflicting testimony, or upon the credibility of witnesses, or so far as there is any testimony consistent with the finding, * * • must be treated as unassailable.” Davis v. Schwartz, 155 U. S. 631, 636, 15 S. Ct. 237, 239, 39 L. Ed. 289. In the last cited case, at page 637 of 155 U. S., 15 S. Ct. 237, 239, the Supreme Court further said: “The question of the eonelusiveness of findings by a master in chancery under a similar order was directly passed upon in Kimberly v. Arms, 129 U. S. 512, 9 S. Ct. 355 [32 L. Ed. 764], in whieh a distinction is drawn between the findings of a master under the usual order to take and report testimony, and his findings when the case is referred to him by consent of parties, as in this ease. While it was held that the court could not, of its motion, or upon the request of one" } ]

[ { "docid": "8501306", "title": "", "text": "the class.” Fed.R.Civ.P. 23(a). Courts refer to these four requirements, which must be satisfied to maintain a class action, as “numerosity, commonality, typicality and adequacy of representation.” Mazza v. Am. Honda, Motor Co., 666 F.3d 581, 588 (9th Cir.2012). In addition to meeting the requirements of Rule 23(a), the Court must also find that Plaintiffs have satisfied “through evidentiary proof’ one of the three subsections of Rule 23(b). Comcast Corp. v. Behrend, — U.S. -, 133 S.Ct. 1426, 1432, 185 L.Ed.2d 515 (2013). The Court can certify a Rule 23(b)(2) class if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.R.Civ.P. 23(b)(2). “[A] court’s class-certification analysis must be ‘rigorous’ and may ‘entail some overlap with the merits of the plaintiffs underlying claim.’ ” Amgen Inc. v. Conn. Ret. Plans & Trust Funds, — U.S. -, 133 S.Ct. 1184, 1194, 185 L.Ed.2d 308 (2013) (quoting Wal-Mart Stores, Inc. v. Dukes, — U.S.-, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011)); see also Mazza, 666 F.3d at 588 (“ ‘Before certifying a class, the trial court must conduct a ‘rigorous analysis’ to determine whether the party seeking certification has met the prerequisites of Rule 23.’ ” (quoting Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186, amended by 273 F.3d 1266 (9th Cir.2001))). Nevertheless, “Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage.” Amgen, 133 S.Ct. at 1194-95. “Merits questions may be considered to the extent — but only to the extent — that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Id. at 1195. Within the framework of Rule 23, the Court ultimately has broad discretion over whether to certify a class. Zin-ser, 253 F.3d at 1186. III. DISCUSSION Plaintiffs move to certify a nationwide class of persons who are not Yahoo Mail subscribers who have sent emails to or received emails from a Yahoo Mail subscriber from" } ]

[ { "docid": "22490516", "title": "", "text": "The recipient may make a request to the sender not to send any future faxes and failure to comply with the request within 30 days is unlawful. R. 1 at 12; R. 68-7 at 9. Practice Management alleges that this opt-out notice was deficient (although its complaint does not specify why). R. 1 ¶ 19. ProFax retained an opt-out list associated with defendants' account, which is comprised of 935 fax numbers. R. 153 at 4; R. 161 at 3. Standard To be certified, a putative class must satisfy the four prerequisites of Federal Rule of Civil Procedure 23(a) : numerosity, commonality, typicality, and adequacy of representation. Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012). The action also must satisfy at least one of the three subsections of Rule 23(b). Id. Here, plaintiffs seek certification under Rule 23(b)(3), which requires a finding that \"questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.\" \"Plaintiffs bear the burden of showing that a proposed class satisfies the Rule 23 requirements.\" Messner , 669 F.3d at 811. \"The Rule does not set forth a mere pleading standard\"; rather, the plaintiff must satisfy Rule 23\"through evidentiary proof.\" Comcast Corp. v. Behrend, 569 U.S. 27, 33, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013). \"It is sufficient if each disputed requirement has been proven by a preponderance of the evidence.\" Messner , 669 F.3d at 811. \"Such an analysis will frequently entail 'overlap with the merits of the plaintiff's underlying claim.' \" Comcast , 569 U.S. at 33-34, 133 S.Ct. 1426 (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011) ). But \"[m]erits questions may be considered ... only to the extent ... that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.\" Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 568 U.S. 455, 466, 133 S.Ct. 1184, 185 L.Ed.2d 308" }, { "docid": "2201034", "title": "", "text": "sends the second and third endorsement emails. V. MOTION TO STRIKE In the alternative to the Motion to Dismiss, Defendant seeks to strike Plaintiffs’ class allegations. See EOF No. 7 at 33-35. Specifically, Defendant contends that if any of the claims proceed, a class cannot be certified because individual issues will predominate over common issues with respect to consent. Accordingly, Defendant contends that a class cannot be certified under Rule 23(b)(3). The Court is not persuaded by Defendant’s contentions. As a threshold matter, Plaintiffs seek injunc-tive relief as well as damages. A Rule 23(b)(2) injunctive class does not require the Plaintiff to show predominance, the only Rule 23 element that Defendant contends Plaintiffs cannot show. Accordingly, even if the Court were to agree with Defendant, it would be inappropriate to strike Plaintiffs’ class allegations. Moreover, the Court finds that the “rigorous analysis” contemplated by the Supreme Court’s recent class certification rulings requires discovery and development of the record. See Amgen Inc. v. Conn. Ret. Plans & Trust Funds, — U.S. —, 133 S.Ct. 1184, 1194, 185 L.Ed.2d 308 (2013) (“[A] court’s class-certification analysis must be ‘rigorous’ and may ‘entail some overlap with the merits of the plaintiffs underlying claim.’ ” (quoting Wal-Mart Stores, Inc. v. Dukes, — U.S. —, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011)); see also Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 588 (9th Cir.2012) (“Before certifying a class, the trial court must conduct a rigorous analysis to determine whether the party seeking certification has met the prerequisites of Rule 23.” (internal quotation marks omitted)). Courts that have stricken class allegations at the pleading stage have recognized that the “granting of motions to strike class allegations before discovery and in advance of a motion for class certification is rare” and have only done so in rare occasions where the class definition is obviously defective in some way. Lyons v. Bank of Am., NA, No. 11-1232, 2011 WL 6303390, at *7 (N.D.Cal. Dec. 16, 2011). In fact, in none of the cases Defendant cites have class allegations been struck for a deficiency with respect" }, { "docid": "1649223", "title": "", "text": "for clear error. Id. (citing In re PolyMedica Corp. Sec. Litig., 432 F.3d 1, 4 (1st Cir.2005)). II. Defendants contend that the class certification is improper because the class includes members who were not injured by generic foreclosure — for example, individual consumers who would have continued to purchase branded Nexium for the same price after generic entry. Understanding the defendants’ challenge requires description of the standards for class certification, only one of which is at issue on appeal. To certify a 23(b)(3) class, the district court must undertake a “rigorous analysis” to determine whether plaintiffs met the four threshold requirements of Rule 23(a) (numerosity, commonality, typicality, and adequacy of representation) and Rule 23(b)(3)’s two additional prerequisites. Comcast Corp. v. Behrend, — U.S. -, 133 S.Ct. 1426, 1432, 185 L.Ed.2d 515 (2013); Wal-Mart Stores, Inc. v. Dukes, — U.S. -, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011); see also Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). Defendants do not dispute that the four Rule 23(a) requirements were met here. In addition, Rule 23(b)(3) permits certification only if the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Fed.R.Civ.P. 23(b)(3). To meet the predominance requirement, the party seeking certification must show that “the fact of antitrust impact can[ ] be established through common proof’ and that “any resulting damages would likewise be established by sufficiently common proof.” New Motor Vehicles, 522 F.3d at 20 (emphasis added). The party also bears the burden of “affirmatively demonstrating] his compliance” with the Rule 23 requirements. Comcast, 133 S.Ct. at 1432. The district court concluded that plaintiffs had done so here, despite finding that the certified class included some number of uninjured class members. On appeal, defendants ask us to reverse the class-certification decision, relying on two related arguments. First, defendants contend that the presence of any uninjured class members (even a de" }, { "docid": "17502010", "title": "", "text": "maintain a class action, the class sought to be represented must be adequately defined and clearly ascertainable.’” Vietnam Veterans of Am. v. C.I.A., 288 F.R.D. 192, 211 (N.D.Cal.2012) (quoting DeBremcecker v. Short, 433 F.2d 733, 734 (5th Cir.1970)). Rule 23(a) requires that plaintiffs demonstrate numerosity, commonality, typicality and adequacy of representation in order to maintain a class. Mazza, 666 F.3d at 588. That is, the class must be so numerous that joinder of all members individually is “impracticable;” there must be questions of law or fact common to the class; the claims or defenses of the class representative must be typical of the claims or defenses of the class; and the class representative must be able to protect fairly and adequately the interests of all members of the class. See Fed.R.Civ.P. 23(a)(l)-(4). If the class is ascertainable and all four prerequisites of Rule 23(a) are satisfied, the court must also find that plaintiffs have “sa-tisf[ied] through evidentiary proof’ at least one of the three subsections of Rule 23(b). Comcast, 133 S.Ct. at 1432. Rule 23(b)(1) requires a showing that there is a risk of substantial prejudice or inconsistent adjudications from separate actions, while Rule 23(b)(2) requires a showing that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.R.Civ.P. 23(b)(1), (2). Rule 23(b)(3), under which plaintiffs seek certification in the present ease, requires a showing that “questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3). “[A] court’s class-certification analysis ... may ‘entail some overlap with the merits of the plaintiff’s underlying claim.’” Amgen Inc. v. Conn. Ret. Plans and Trust Funds, — U.S.-, 133 S.Ct. 1184, 1194, 185 L.Ed.2d 308 (2013) (quoting Dukes, 131 S.Ct. at 2551). Nevertheless, “Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage.” Id." }, { "docid": "8467386", "title": "", "text": "Inc. v. Dukes, — U.S. -, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011); Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir.), amended by 273 F.3d 1266 (9th Cir.2001). To be certified, a proposed class must satisfy all requirements in Rule 23(a) and at least one of the requirements in Rule 23(b). Rule 23(a) requires that plaintiffs demonstrate (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. Fed. R.Civ.P. 23(a). Rule 23(b) lists three alternative requirements for class certification, and where, as here, plaintiffs seek class certification under subsection (b)(3), they must demonstrate the superiority of maintaining a class action and show “that the questions of law or fact common to class members predominate over any questions affecting only individual members.” Fed.R.Civ.P. 23(b)(3); see also Zinser, 253 F.3d at 1189-92. A court, when asked to certify a class, is merely to decide a suitable method of adjudicating the case and should not “turn class certification into a mini-trial” on the merits. Ellis v. Costco Wholesale Corp., 657 F.3d 970, 983 n. 8 (9th Cir.2011). But Rule 23(a)(2) is not a pleading standard, so to the extent necessary, our determination of commonality will inevitably touch upon the merits of plaintiffs’ underlying RESPA claims. See, e.g., Amgen Inc. v. Conn. Ret. Plans & Trust Funds, — U.S. -, 133 S.Ct. 1184, 1194, 185 L.Ed.2d 308 (2013); Wal-Mart Stores, 131 S.Ct. at 2551; Stockwell v. City & Cty. of S.F., 749 F.3d 1107, 1111-12 (9th Cir.2014). In 1974, Congress passed RESPA to protect consumers from “unnecessarily high settlement charges caused by certain abusive practices.” 12 U.S.C. § 2601(a). One of the consumer-protection provisions is RESPA § 8, 12 U.S.C. § 2607, which furthers Congress’s goal of “eliminating] ... kickbacks or referral fees that tend to increase unnecessarily the costs of certain settlement services.” Id. § 2601(b)(2); see also Freeman v. Quicken Loans, Inc., — U.S. -, 132 S.Ct. 2034, 2038, 182 L.Ed.2d 955 (2012). Paying kickbacks or réferral fees to induce referrals of title insurance underwriting is part of the serious problem Congress sought to remedy in" }, { "docid": "15684257", "title": "", "text": "23(a)’s four requirements are satisfied, they must then show that at least one of the requirements set forth in Rule 23(b) is met. Vega v. T-Mobile USA Inc., 564 F.3d 1256, 1265 (11th Cir.2009). Plaintiffs rely on Rule 23(b)(3), which provides in pertinent part that a class action may be maintained where it is shown that “questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” In addition to these express requirements of Rule 23, there is an implicit but firm requirement that Plaintiffs must satisfy. “Before a district court may grant a motion for class certification, a plaintiff seeking to represent a proposed class must establish that the proposed class is adequately defined and clearly ascertainable.” Little v. T-Mobile USA Inc., 691 F.3d 1302, 1304 (11th Cir. 2012) (internal punctuation omitted). Courts must perform a “rigorous analysis” to ensure that Rule 23’s requirements are satisfied before certifying a class. Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). This is so even where some of the requirements are not in dispute, Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1188 (11th Cir. 2003), or where it requires the Court to decide disputed questions of fact that bear on the inquiry, Brown v. Electrolux Home Prods., Inc., 817 F.3d 1225, 1233-34 (11th Cir.2016). See also Dukes, 564 U.S. at 350, 131 S.Ct. 2541 (“Rule 23 does not set forth a mere pleading standard.”); Comcast Corp. v. Behrend, — U.S. —, 133 S.Ct. 1426, 1432-33, 185 L.Ed.2d 515 (2013) (reversing certification where district court abstained from considering certain arguments that pertained to both Rule 23 and the merits determination). Nevertheless, “Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage,” and thus merits questions may be considered “only to the extent” they pertain to the Rule 23 analysis. Amgen Inc. v. Conn. Retirement Plans & Tr. Funds, — U.S. —, 133" }, { "docid": "19321384", "title": "", "text": "the flexibility to address problems with a certified class as they arise, including the ability to decertify.” United Steel, Paper & Forestry, Rubber, Mfg. Energy, Allied Indust. & Serv. Workers Int’l Union v. ConocoPhillips Co., 593 F.3d 802, 809 (9th Cir.2010). The party seeking decertification has the burden of establishing that the requirements of FRCP 23 have not been met. See Gonzales v. Arrow Fin. Servs. LLC, 489 F.Supp.2d 1140, 1153 (S.D.Cal.2007); Slaven v. BP Am., Inc., 190 F.R.D. 649, 651 (C.D.Cal.2000). This burden is substantial, as “doubts re garding the propriety of class certification should be resolved in favor of certification.” Gonzales, 489 F.Supp.2d at 1154. FRCP 23(a) requires that the party moving for class certification show the following prerequisites have been met: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. Fed.R.Civ.P. 23(a); see Staton v. Boeing Co., 327 F.3d 938, 953 (9th Cir.2003). “[AJctual, not presumed, conformance with Rule 23(a) remains ... indispensable.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). The trial court is expected to engage in a “rigorous analysis” to determine whether the prerequisites of Rule 23(a) have been satisfied. Wal-Mart Stores v. Dukes, — U.S.-, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011) (quoting Falcon, 457 U.S. at 161, 102 S.Ct. 2364). This rigorous analysis will often “overlap with the merits of the plaintiffs underlying claim. That cannot be helped.” Wal-Mart, 131 S.Ct. at 2551. FRCP 23(b)(3) requires a showing that questions of law or fact common to the class “predominate” over questions affecting the individual members, and that, on balance, a class action is superior to other methods available for adjudication. See Fed.R.Civ.P. 23(b)(3). In addition to the express requirements of Rule 23, “there are implied prerequisites to class certification that the class must be sufficiently definite and ascertainable.” Galvan v. KDI Distrib. Inc., No. SACV 08-0999-JVS (ANx), 2011 WL 5116585, at *3 (C.D.Cal. Oct. 25, 2011). B. Analysis Defendants contend generally that “new facts and law have arisen, requiring reassessment of the certification order and decertification of the class.”" }, { "docid": "8467385", "title": "", "text": "of reliance and causation for referrals. Third, the district court concluded that transaction-specific inquiries as a result of the different types of title agencies will not require common proof related to First American’s liability. Edwards appeals the district court’s order denying class certification. II We review the district court’s determination of class certification for abuse of discretion and consider “whether the district court correctly selected and applied Rule 23’s criteria.” Parra v. Bashas’, Inc., 536 F.3d 975, 977 (9th Cir.2008). The underlying legal questions, however, are reviewed de novo, .and “any error of law on which a certification order rests is deemed a per se abuse of discretion.” Conn. Ret. Plans & Trust Funds v. Amgen Inc., 660 F.3d 1170, 1175 (9th Cir.2011). III A Federal Rule of Civil Procedure 23 allows a representative to litigate on behalf of a class of similarly-situated individuals who are too numerous to join the litigation. The party seeking class certification bears the burden of establishing that the proposed class meets the requirements of Rule 23. See Wal-Mart Stores, Inc. v. Dukes, — U.S. -, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011); Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir.), amended by 273 F.3d 1266 (9th Cir.2001). To be certified, a proposed class must satisfy all requirements in Rule 23(a) and at least one of the requirements in Rule 23(b). Rule 23(a) requires that plaintiffs demonstrate (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. Fed. R.Civ.P. 23(a). Rule 23(b) lists three alternative requirements for class certification, and where, as here, plaintiffs seek class certification under subsection (b)(3), they must demonstrate the superiority of maintaining a class action and show “that the questions of law or fact common to class members predominate over any questions affecting only individual members.” Fed.R.Civ.P. 23(b)(3); see also Zinser, 253 F.3d at 1189-92. A court, when asked to certify a class, is merely to decide a suitable method of adjudicating the case and should not “turn class certification into a mini-trial” on the merits. Ellis v. Costco Wholesale Corp., 657 F.3d 970," }, { "docid": "14620108", "title": "", "text": "asserts that class certification is appropriate pursuant to Rule 23(b)(2) and, alternatively, 23(b)(3). Rule 23(b)(2) requires that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Class certification under Rule 23(b)(3) is appropriate when (1) “questions of law or fact common to the members of the class predominate over any questions affecting only individuals members,” and when (2) “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). In deciding whether to certify a class, a district court has broad discretion. Washington v. Brovm & Williamson Tobacco Corp., 959 F.2d 1566, 1569 (11th Cir.1992). Although a district court is not to determine the merits of a case at the certification stage, sometimes “‘it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.’ ” Mills v. Foremost Ins. Co., 511 F.3d 1300, 1309 (11th Cir.2008) (quoting General Tel. Co. v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)). A class action may only be certified if the court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23 have been met. Gilchrist v. Bolger, 733 F.2d 1551, 1555 (11th Cir.1984). The moving party “must affirmatively demonstrate his compliance” with the class certification requirements. Comcast Corp. v. Behrend, — U.S. -, 133 S.Ct. 1426, 1432, 185 L.Ed.2d 515 (2013) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011)). That is, “a party must not only be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, typicality of claims or defenses, and adequacy of representation, as required by Rule 23(a) [but also] satisfy through evidentiary proof at least one of the provisions of Rule 23(b).” Id. A. Defendant’s Objections to the Class Definition “Before a district court may" }, { "docid": "17502011", "title": "", "text": "requires a showing that there is a risk of substantial prejudice or inconsistent adjudications from separate actions, while Rule 23(b)(2) requires a showing that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.R.Civ.P. 23(b)(1), (2). Rule 23(b)(3), under which plaintiffs seek certification in the present ease, requires a showing that “questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3). “[A] court’s class-certification analysis ... may ‘entail some overlap with the merits of the plaintiff’s underlying claim.’” Amgen Inc. v. Conn. Ret. Plans and Trust Funds, — U.S.-, 133 S.Ct. 1184, 1194, 185 L.Ed.2d 308 (2013) (quoting Dukes, 131 S.Ct. at 2551). Nevertheless, “Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage.” Id. at 1194-95. “Merits questions may be considered to the extent—but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Id. at 1195. If it concludes that the moving party has met its burden of proof, then the court has broad discretion to certify the class. See Zinser v. Accufix Research Institute, Inc., 253 F.3d 1180, 1186 (9th Cir.2001), amended by 273 F.3d 1266 (9th Cir,2001). B. Plaintiffs’ Motion Plaintiffs contend that class certification is proper in this case because each of the members of the class suffered the same type of injury. They argue that each of the class members is a Blue Shield participant or beneficiary in an ERISA plan who was treated in a residential treatment center (“RTC”) or who was financially responsible for payment of RTC treatment, and whose claims for RTC treatment were routinely denied by Blue Shield. Plaintiffs assert that the proposed class meets all the requirements of Rule 23. They contend that the proposed class is ascertainable, and that" }, { "docid": "14981741", "title": "", "text": "v. Mowbray, 208 F.3d 288, 295 (1st Cir.2000)). DISCUSSION I. Class Certification Alcantar contends that the district court improperly reached the merits of his claims in denying class certification under Rule 23(a)(2) and Rule 23(b)(3). “The class action is ‘an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.’ ” Wal-Mart Stores, Inc. v. Dukes,-U.S., 131 S.Ct. 2541, 2550, 180 L.Ed.2d 374 (2011) (quoting Califano v. Yamasaki 442 U.S. 682, 700-01, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979)). This exdeption is justified where the class members and the class representative possess the same interest and have suffered the same injury. Id. Rule 23(a) seeks to ensure that the class claims are limited to those “ ‘fairly encompassed by the named plaintiffs claims.’ ” Id. (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)). To that end, Rule 23(a) conditions certification on a demonstration that (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a). Courts must perform a “rigorous analysis” of these prerequisities before concluding that Rule 23(a) is satisfied. Wal-Mart, 131 S.Ct. at 2551 (quoting Falcon, 457 U.S. at 161, 102 S.Ct. 2364). The analysis may “entail some overlap with the merits of the plaintiffs underlying claim,” id., but Rule 23 “grants courts no license to engage in free-ranging merits inquiries at the certification stage.” Amgen Inc. v. Conn. Ret. Plans & Trust Funds, — U.S. -, 133 S.Ct. 1184, 1194-95, 185 L.Ed.2d 308 (2013). Instead, “[m]erits questions may be considered to the extent — but only to the extent — that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Id. at 1195. Once these prerequisites are satisfied, the proposed class" }, { "docid": "17502008", "title": "", "text": "provide coverage for all medically necessary treatment for severe mental illnesses, “the basis for the district court’s order granting summary judgment in favor of [Blue Shield] is foreclosed by Harlick, [and] appellants’ opposed motion for summary disposition is granted.” The court summarily reversed the judgment and remanded the case “for further proceedings consistent with Harlick.” DISCUSSION A Legal Standard A party seeking to maintain a class action “ ‘must affirmatively demonstrate his compliance’ ” with Federal Rule of Civil Procedure 23. Comcast Corp. v. Behrend, — U.S.-, 133 S.Ct. 1426, 1432, 185 L.Ed.2d 515 (2013) (quoting Wal-Mart Stores, Inc. v. Dukes, — U.S.-, 131 S.Ct. 2541, 2551-52, 180 L.Ed.2d 374 (2011)); see also Gen’l Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 156, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) (party moving for class certification bears the burden of establishing that the Rule 23 requirements are satisfied). The primary question in deciding a plaintiffs motion for class certification is not whether the plaintiff has stated a cause of action that will prevail on the merits, but whether he/she has met the requirements of Rule 23. See United Steel, Paper & Forestry, Rubber, Mfg. Energy, Allied Indus. & Serv. Workers Int'l Union, AFL-CIO v. ConocoPhillips Co., 593 F.3d 802, 808 (9th Cir. 2010); see also Mazza v. American Honda Motor Co., Inc., 666 F.3d 581, 588 (9th Cir. 2012) (court must conduct a “rigorous analysis” to determine whether the moving party has met the prerequisites of Rule 23). However, Rule 23 “does not set forth a mere pleading standard.” Comcast, 133 S.Ct. at 1432 (quoting Dukes, 131 S.Ct. at 2551-52). Plaintiffs must prove that they meet each of the four requirements of Federal Rule of Civil Procedure 23(a), and at least one of the requirements of Rule 23(b). Id.; see also Dukes, 131 S.Ct. at 2551-52. As a threshold matter, the party seeking class certification must demonstrate that an identifiable and ascertainable class exists. Mazur v. eBay Inc., 257 F.R.D. 563, 567 (N.D.Cal.2009). “While it is not an enumerated requirement of Rule 23, courts have recognized that ‘in order to" }, { "docid": "1649222", "title": "", "text": "concluded that “[a]t this stage in class certification ... the incidence of uninjured consumers and TPPs are insufficient to overcome a showing of common antitrust impact to the putative class, but the Court preserves the Defendants’ right to challenge individual damage claims at trial.” Add. 12a (citing Amgen, Inc. v. Connecticut Ret. Plans & Trust Funds, — U.S. -, 133 S.Ct. 1184, 1194-95, 185 L.Ed.2d 308 (2013)); Add. 24a. We review class certification orders for abuse of discretion. Smilow v. Sw. Bell Mobile Sys., Inc., 323 F.3d 32, 37 (1st Cir.2003) (citing Califano v. Yamasaki, 442 U.S. 682, 703, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979)). “An abuse of discretion also occurs if the court adopts an incorrect legal rule.” Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 295 (1st Cir.2000). A “class certification appeal ‘can pose pure issues of law reviewed de novo. ’ ” In re New Motor Vehicles Canadian Export Antitrust Litig., 522 F.3d 6, 17 (citing Tardiff v. Knox County, 365 F.3d 1, 4 (1st Cir.2004)). Factual determinations are reviewed for clear error. Id. (citing In re PolyMedica Corp. Sec. Litig., 432 F.3d 1, 4 (1st Cir.2005)). II. Defendants contend that the class certification is improper because the class includes members who were not injured by generic foreclosure — for example, individual consumers who would have continued to purchase branded Nexium for the same price after generic entry. Understanding the defendants’ challenge requires description of the standards for class certification, only one of which is at issue on appeal. To certify a 23(b)(3) class, the district court must undertake a “rigorous analysis” to determine whether plaintiffs met the four threshold requirements of Rule 23(a) (numerosity, commonality, typicality, and adequacy of representation) and Rule 23(b)(3)’s two additional prerequisites. Comcast Corp. v. Behrend, — U.S. -, 133 S.Ct. 1426, 1432, 185 L.Ed.2d 515 (2013); Wal-Mart Stores, Inc. v. Dukes, — U.S. -, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011); see also Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). Defendants do not dispute that the four" }, { "docid": "16229518", "title": "", "text": "involves a two-part analysis. First, under Rule 23(a), the proposed class must satisfy the requirements of “numerosity, commonality, typicality, and fair and adequate representation.” Luiken v. Domino’s Pizza, LLC, 705 F.3d 370, 372 (8th Cir.2013). Second, the proposed class must meet at least one of the three requirements of Rule 23(b). Comcast Corp. v. Behrend, — U.S. —, 133 S.Ct. 1426, 1432, 185 L.Ed.2d 515 (2013). LaBrier asserts that the proposed class qualifies under Rule 23(b)(3). It is LaBrier’s burden to show the class should be certified. See Luiken, 705 F.3d at 372. This burden is met only if, “after a rigorous analysis,” the Court is convinced the Rule 23 requirements are satisfied. Comcast, 133 S.Ct. at 1432 (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 2551-52, 180 L.Ed.2d 374 (2011)). In the Eighth Circuit, the rigorous analysis includes examining whether the proposed class “is adequately defined and clearly ascertainable.” Sandusky Wellness Center, LLC v. Medtox Scientific, Inc., 821 F.3d 992, 996 (8th Cir.2016) (citing Ihrke v. N. States Power Co., 459 F.2d 566, 573 n. 3 (8th Cir.1972)). Rigorous analysis may further “entail some overlap with the merits of the plaintiffs underlying claim,” because “[t]he class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiffs cause of action.” Wal-Mart, 131 S.Ct. at 2551-52 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)). District courts have broad discretion in deciding whether class certification is appropriate. Prof'l Firefighters Ass’n of Omaha, Local 385 v. Zalewski, 678 F.3d 640, 645 (8th Cir.2012) (citing Rattray v. Woodbury Cnty., Iowa, 614 F.3d 831, 835 (8th Cir.2010)). B. State Farm’s preliminary arguments State Farm argues that ascertaina-bility of class members is a stand-alone requirement, separate from those explicitly provided in Rule 23. See Doc. 161, pp. 19-20. In Sandusky, as mentioned above, the Eighth Circuit recently explained that whether the proposed class is clearly ascertainable is a question that must be answered as part of the rigorous analysis performed under Rule 23. 821 F.3d" }, { "docid": "15909920", "title": "", "text": "members as: All consumers in the Commonwealth of Pennsylvania to whom, from March 5, 2012, and continuing through the resolution of this action, Defendants sent a letter substantially in the form attached to the Amended Complaint as Exhibit A, in an attempt to collect a consumer debt allegedly owed to Verizon Pennsylvania, Inc. LEGAL STANDARD Rule 23 governs the certification of class actions in federal court. A plaintiff seeking class certification must satisfy all requirements of Rule 23(a) and at least one of the requirements of Rule 23(b). Amgen Inc. v. Conn. Ret. Plans & Trust Funds, — U.S.-, 133 S.Ct. 1184, 1194, 185 L.Ed.2d 308 (2013); see also Marcus v. BMW of North America, 687 F.3d 583, 590 (3d Cir. 2012). “Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule.” Wal-Mart Stores, Inc. v. Dukes, — U.S. -, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011). A district court’s analysis of a motion for class certification “must be ‘rigorous’ and may ‘entail some overlap with the merits of the plaintiffs underlying claim.’” Amgen Inc., 133 S.Ct. at 1194 (quoting Dukes, 131 S.Ct. at 2551). However, “Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage. Merits questions may be considered to the extent— but only to the extent—that they are relevant to determining whether Rule 23 prerequisites for class certification are satisfied.” Id. at 1194-95. “Factual determinations necessary to make Rule 23 findings must be made by a preponderance of the evidence.” In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 320 (3d Cir.2008). To satisfy the Rule 23(a) requirements: (1) the class must be “so numerous that joinder of all members is impracticable” (numerosity); (2) there must be “questions of law or fact common to the class” (commonality); (3) “the claims or defenses of the representative parties” must be “typical of the claims or defenses of the class” (typicality); and (4) the named plaintiffs must “fairly and adequately protect the interests of the class” (adequacy of representation, or" }, { "docid": "8563764", "title": "", "text": "at the time a tax deed was issued. Mem. at 4. This class may seek a retrospective declaratory judgment because its claims are “intertwined with a claim for monetary damages that requires [the Court] to declare whether a past constitutional violation occurred.” Lippoldt v. Cole, 468 F.3d 1204, 1217 (10th Cir.2006) (quotation marks omitted). III. Class Certification “The class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Comcast Corp. v. Behrend, — U.S. -, 133 S.Ct. 1426, 1432, 185 L.Ed.2d 515 (2013) (quotation marks omitted). Certification of a class action is governed by Rule 23 of the Federal Rules of Civil Procedure, and a plaintiff “must affirmatively demonstrate his compliance with” Rule 23. Wal-Mart Stores, Inc. v. Dukes, — U.S. -, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011). “This is done not by pleading compliance, but by ‘demonstrating compliance in fact.’ ” Ar-tis v. Yellen, No. 1-400, 307 F.R.D. 13, 23, 2014 WL 4801783, at *8 (D.D.C. Sept. 29, 2014) (quoting Wal-Mart, 131 S.Ct. at 2551) (alterations omitted). The process of assessing a plaintiffs compliance with Rule 23 is often “enmeshed in the factual and legal issues comprising the plaintiffs cause of action” so the Court may inquire into the merits of the plaintiffs’ claims, Wal-Mart, 131 S.Ct. at 2551-52, but only to the extent necessary “ ‘to determine] whether the Rule 23 prerequisites for class certification are satisfied.’” D.L. v. District of Columbia, 713 F.3d 120, 126 (D.C.Cir.2013) (quoting Amgen Inc. v. Conn. Ret. Plans & Trust Funds, — U.S. -, 133 S.Ct. 1184, 1194-95, 185 L.Ed.2d 308 (2013)). A. Existence of a Class “Although not specifically mentioned in the rule, an essential prerequisite of an action under Rule 23 is that there must be a ‘class.’ ” Wright & Miller, Federal Practice & Procedure § 1760A (3d ed. 2014); see also Simer v. Rios, 661 F.2d 655, 669 (7th Cir. 1981) (“it is axiomatic that for a class action to be certified a ‘class’ must exist”). Asking a plaintiff to demonstrate the existence" }, { "docid": "22490517", "title": "", "text": "the fair and efficient adjudication of the controversy.\" \"Plaintiffs bear the burden of showing that a proposed class satisfies the Rule 23 requirements.\" Messner , 669 F.3d at 811. \"The Rule does not set forth a mere pleading standard\"; rather, the plaintiff must satisfy Rule 23\"through evidentiary proof.\" Comcast Corp. v. Behrend, 569 U.S. 27, 33, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013). \"It is sufficient if each disputed requirement has been proven by a preponderance of the evidence.\" Messner , 669 F.3d at 811. \"Such an analysis will frequently entail 'overlap with the merits of the plaintiff's underlying claim.' \" Comcast , 569 U.S. at 33-34, 133 S.Ct. 1426 (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011) ). But \"[m]erits questions may be considered ... only to the extent ... that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.\" Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 568 U.S. 455, 466, 133 S.Ct. 1184, 185 L.Ed.2d 308 (2013). District courts have \"broad discretion\" when determining whether a proposed class satisfies Rule 23. Howland v. First Am. Title Ins. Co. , 672 F.3d 525, 528 (7th Cir. 2012) ; see also Dukes, 564 U.S. at 369, 131 S.Ct. 2541 (\"[M]ost issues arising under Rule 23... [are] committed in the first instance to the discretion of the district court.\"). Discussion \"Class certification is normal\" under the TCPA \"because the main questions, such as whether a given fax is an advertisement, are common to all recipients.\" Ira Holtzman, C.P.A. v. Turza , 728 F.3d 682, 683 (7th Cir. 2013). Judges in this district have certified dozens of TCPA fax cases. See R. 68-1 at 11 n.7 (collecting cases). And this case does not implicate the individualized consent issues that have been held to defeat class certification in a number of recent cases applying the Federal Circuit's decision in Bais Yaakov of Spring Valley v. FCC , 852 F.3d 1078, 1083 (D.C. Cir. 2017), cert. denied sub nom. Bais Yaakov of Spring Valley v. F.C.C. ," }, { "docid": "8501307", "title": "", "text": "v. Dukes, — U.S.-, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011)); see also Mazza, 666 F.3d at 588 (“ ‘Before certifying a class, the trial court must conduct a ‘rigorous analysis’ to determine whether the party seeking certification has met the prerequisites of Rule 23.’ ” (quoting Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186, amended by 273 F.3d 1266 (9th Cir.2001))). Nevertheless, “Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage.” Amgen, 133 S.Ct. at 1194-95. “Merits questions may be considered to the extent — but only to the extent — that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Id. at 1195. Within the framework of Rule 23, the Court ultimately has broad discretion over whether to certify a class. Zin-ser, 253 F.3d at 1186. III. DISCUSSION Plaintiffs move to certify a nationwide class of persons who are not Yahoo Mail subscribers who have sent emails to or received emails from a Yahoo Mail subscriber from October 2, 2011 to the present, or who will send emails to or receive emails from a Yahoo Mail subscriber in the future. Mot. at 1. In the alternative, Plaintiffs seek the additional certification of a California-only subclass as to Plaintiffs’ CIPA claim. Plaintiffs seek to certify only an injunctive relief class under Rule 23(b)(2). The Court addresses Plaintiffs’ standing to seek injunctive relief before turning to the requirements of Rule 23(a) and Rule 23(b). A. Standing Yahoo challenges Plaintiffs’ standing to seek injunctive or declaratory relief under Rule 23(b)(2). More specifically, Yahoo argues that Plaintiffs have continued to send emails to Yahoo subscribers even after Plaintiffs learned that Yahoo allegedly scans, stores, and uses those emails. According to Yahoo, Plaintiffs’ conduct constitutes consent to Yahoo’s practices, and Plaintiffs’ knowledge of Yahoo’s practices “precludes [them] from showing a likelihood of being injured in the future by those practices.” Opp. at 16 (quoting In re Intel Laptop Battery Litig., No. C09-02889 JW, 2011 WL 7290487, at *2 (N.D.Cal. Apr. 7, 2011)). For the reasons stated below," }, { "docid": "20393765", "title": "", "text": "after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). To certify a class action, plaintiffs must set forth facts that provide prima facie support for the four requirements of Rule 23(a): (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. -, -, 131 S.Ct. 2541, 2548, 180 L.Ed.2d 374 (2011); Dunleavy v. Nadler (In re Mego Fin. Corp. Sec. Litig.), 213 F.3d 454, 462 (9th Cir.2000). These requirements effectively “limit the class claims to those fairly encompassed by the named plaintiffs claims.” Falcon, 457 U.S. at 155, 102 S.Ct. 2364 (quoting Califano v. Yamasaki, 442 U.S. 682, 701, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979)). If the Court finds that the action meets the prerequisites of Rule 23(a), the Court must then consider whether the class is maintainable under Rule 23(b). Dukes, 131 S.Ct. at 2548. Rule 23(b)(3) governs eases where monetary relief is are the predominant form of relief sought, as is the case here. A class is maintainable under Rule 23(b)(3) where “questions of law or fact common to the members of the class predominate over any questions affecting only individual members,” and where “a class action is superior to other available methods for fair and efficient adjudication of the controversy.” Fed.R.Civ.P. 23(b)(3). “The Rule 23(b)(3) predominance inquiry tests whether the proposed classes are sufficiently cohesive to war rant adjudication by representation.” Han-lon v. Chrysler Corp., 150 F.3d 1011, 1022 (9th Cir.1998) (citing Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231,138 L.Ed.2d 689 (1997)). The predominance inquiry measures the relative weight of the common to individualized claims. Id. “Implicit in the satisfaction of the predominance test is the notion that the adjudication of common issues will help achieve judicial economy.” Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1189 (9th Cir.2001) (citing Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir.1996)). In determining superiority, the court must consider the four factors" }, { "docid": "20704745", "title": "", "text": "Jones, LLC, No. 2:13-CV-212, 2013 WL 6255693 (S.D.Ohio Dec. 4, 2013) (to conserve judicial resources, bifurcating under Rule 42(b) issues relating to liability, such as whether defendants are considered “debt collectors” under the Fair Debt Collection Practices Act), granting defendants’ motion for summary judgment on liability, 37 F.Supp.3d 928 (S.D.Ohio 2014), vacated and remanded, 785 F.3d 1091 (6th Cir.2015); see generally Susan E. Abitanta, Bifurcation of Liability and Damages in Rule 23(b)(3) Class Actions: History, Policy, Problems, and a Solution, 36 Sw. L.J. 743, 744 (1982) (discussing the economic benefits of bifurcation in class actions). COOK, Circuit Judge, dissenting. Recent Supreme Court precedent clearly holds that “plaintiffs wishing to proceed through a class action must actually prove — not simply plead — that their proposed class satisfies each requirement of Rule 23.” Halliburton Co. v. Erica P. John Fund, Inc., — U.S. -, 134 S.Ct. 2398, 2412, 189 L.Ed.2d 339 (2014); see also Comcast Corp. v. Behrend, — U.S. -, 133 S.Ct. 1426, 1432, 185 L.Ed.2d 515 (2013); Amgen Inc. v. Conn. Ret. Plans & Trust Funds, — U.S. -, 133 S.Ct. 1184, 1194, 185 L.Ed.2d 308 (2013); Wal-Mart Stores, Inc. v. Dukes, — U.S. -, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011). District courts may certify a class only where the plaintiff presents “evidentiary proof’ sufficient to withstand “rigorous analysis” of Rule 23’s requirements. Comcast, 133 S.Ct. at 1432. Nothing about the district court’s analysis here was rigorous, and the majority papers over this abuse of discretion by claiming that any further inquiry would result in an impermissible “dress rehearsal” for trial. More often than not, however, a district court’s “ ‘rigorous analysis’ will entail some overlap with the merits of the plaintiffs underlying claim.” Dukes, 131 S.Ct. at 2551-52 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)). And this case is no exception to that rule. Because the majority opinion conflicts with the Supreme Court’s Rule 23 jurisprudence, I dissent. Plaintiffs proclaim that Align is “snake oil” that produces nothing more than a placebo effect. But" } ]

[ { "docid": "22728319", "title": "", "text": "would not serve any time.” A magistrate’s report, based on transcripts of the change of plea and sentencing hearings, recommended that the petition be dismissed, notifying the parties, in accordance with the district court’s local rule, that they “have ten days to file any opposition”. A month and a half later, the district court, 612 F.Supp. 1156, in the absence of any opposition, and relying on our rulings in Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980), and United States v. Escoboza Vega, 678 F.2d 376, 379 (1st Cir.1982), adopted the magistrate’s conclusions. It added that it was convinced that a court’s rejection of a prosecutor’s sentencing recommendation gave rise to no right of a defendant to withdraw a guilty plea, particularly where the defendant was informed of the nonbinding nature of any recommendation. Appellant sent a handwritten note to the district court stating that he planned to appeal its decision, again on the sole ground that “my plea was based on the ‘promise’ made by the U.S. Attorney.” Appellant’s brief on appeal is devoted to two issues: first, a challenge under Fed.R.Crim.P. 11 to the adequacy of inquiries of the voluntariness and intelligence of appellant’s guilty plea; and, second, a challenge to the denial of his petition without a hearing. These issues, however, not having been raised in the district court, cannot be considered on appeal. Cohen v. President and Fellows of Harvard College, 729 F.2d 59 (1st Cir.1984); Johnston v. Holiday Inns, Inc., 595 F.2d 890 (1st Cir.1979). Although the Rule 11 inquiries may have left something to be desired, and even have been inadequate, our review of the evidence, together with the certification of appellant’s attorney, convinces us that this is not one of the “horrendous” eases where a miscarriage of justice might have occurred. Id. at 894. The one substantive issue before us is whether appellant is entitled to withdraw his guilty plea because the judge refused to accept the prosecutor’s recommendation. As to this, the government claims that the appellant waived the issue by not objecting to the magistrate’s" } ]

[ { "docid": "16825902", "title": "", "text": "proper defendants and this is not the proper forum for such a claim. Plaintiff could and should have raised it as a defense to the renewal of the restraining order at the further hearing held in Fram-ingham District Court on March 8, 1994— a hearing of which Plaintiff did have notice. V. Conclusion For all of the reasons set forth above, I recommend that Defendants’ motion for summary judgment be GRANTED as to all of Plaintiffs claims. All counts being dismissed, judgment should enter for Defendants. VI. IMPORTANT NOTICE OF RIGHT TO OBJECT AND WAIVER OF RIGHT TO APPEAL FOR FAILURE TO DO SO WITHIN TEN DAYS The parties are hereby advised that under the provisions of Rule 3(b) of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts, any party who objects to these proposed findings and recommendations must file a written objection thereto with the Clerk of this Court WITHIN 10 DAYS of the party’s receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations, or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has indicated that failure to comply with this rule shall preclude further appellate review by the Court of Appeals of the District Court’s order entered pursuant to this Report and Recommendation. See United States v. Valencia-Copete, 792 F.2d 4, 5-6 (1st Cir.1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); United States v. Vega, 678 F.2d 376, 379 (1st Cir.1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980); see also Thomas v. Arn, 474 U.S. 140, 148-149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985), reh’g denied, 474 U.S. 1111, 106 S.Ct. 899, 88 L.Ed.2d 933 (1986). . Unless otherwise indicated, the facts presented below are undisputed. . Plaintiff does not recall Gatchell responding to his wife's statement. PLDep. at 70. . Presumably, the factfinder acquitted Plaintiff because it was undisputed that" }, { "docid": "2777190", "title": "", "text": "Facts in Support of Defendant International Insurance Group, Ltd.’s Motion for Summary Judgment” (“DF”) (Docket No. 72); “Plaintiff-Intervenor Michael Ingoldsby’s Statement of Disputed Material Facts in Opposition to In ternational Insurance Group, Ltd.'s Motion for Summary Judgment” (\"PF”) (Docket No. 74); the exhibits attached to IIG's Memorandum of Law (\"Def.Ex.-”) (Docket No. 71); the exhibits attached to the Affidavit of Gregory J. Aceto, Ingoldsby's counsel (\"Pl.Ex. ■-■”) (Docket No. 75); and the \"Affidavit of Michael Ingoldsby in Opposition to IIG's Motion for Summary Judgment” (\"Ingoldsby Aff.”) (Docket No. 76). . It is unclear from the record where this provision was located in the policy. . The sender of the letter is not identified in the letter. From other pleadings filed by the parties, it appears to have been sent by Carpenter Moore Insurance Services, Inc., a wholesaler IIG used to place the insurance with National Union. See IIG's Mem. (Docket No. 71) at 1-2. . A copy of the Heller Complaint is attached to Ingoldsby's Affidavit in Opposition to National Union's Motion for Summary Judgment (Docket No. 85). . The parties are hereby advised that under the provisions of Fed.R.Civ.P. 72 any party who objects to these proposed findings and recommendations must file a written objection thereto with the Clerk of this Court within 10 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with this Rule shall preclude further appellate review. See Keating v. Sec’y of Health & Human Servs., 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604-605 (1st Cir.1980); United States v. Vega, 678 F.2d 376, 378-79 (1st Cir.1982); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); see also Thomas v. Arn, 474 U.S. 140, 153-54, 106 S.Ct." }, { "docid": "13808440", "title": "", "text": "receipt of this Report and Recommendation. The written objections must specifically identify the portion of the recommendations, or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with Rule 72(b), Fed.R.Civ.P., shall preclude further appellate review. See Keating v. Secretary of Health and Human Services, 848 F.2d 271 (1st Cir.1988); United States v. Emiliano Valencia-Copete, 792 F.2d 4 (1st Cir.1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir.1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir.1980); see also Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Filed Feb. 12, 2014. . Also indicted on that day were three other co-defendants: Jean Janvier, Gerald Scott, and Fernando Phillips. These co-defendants were also charged with selling crack cocaine in the same area as Smoak. See PSR ¶¶ 11-12. . Although Smoak was indicted on five counts, the petitioner only pled guilty to four counts. See Hearing Prior to Empanelment of Jury Trial and Plea, p. 12. . During the course of the investigation, there were a grand total of five encounters leading to the fifth charge against the petitioner. However, since the prosecution was only willing to go forward on four charges and the petitioner pleaded guilty to those four, the fifth will not be discussed. . See also Letter from Office of Clerk of the United States Supreme Court, dated October 11, 2011. (#251) . The petitioner had filed a motion for an Extension of Time to file a memorandum of law on January 14, 2013. (# 270) Judge Gor-ton granted an extension of time until March 13, 2013. (#272) .The government did not oppose the petitioner's Motion to Amend. (# 284) As a result the amended motion was docketed as # 311. . The court will use the petitioner’s signed memorandum (# 275) during its discussion of the petitioner’s claims. . Even the unsigned" }, { "docid": "20203606", "title": "", "text": "issuing its December 2009 order requiring ISN to pay Saakvitne; and (3) whether the district court abused its equitable powers under ERISA by extending to Saakvitne the power to terminate the plan. A. Whether ISN waived its right to challenge the findings of the magistrate judge by failing to file its objections with the district court within ten days is a question of law subject to de novo review. See United States v. Schronce, 727 F.2d 91, 93-94 (4th Cir.1984); see also United States v. General, 278 F.3d 389, 399 (4th Cir.2002) (“Whether a defendant has effectively waived his statutory right to appeal ... is a question of law subject to de novo review.”). ISN waived its right to full district court review of the recommendations when it failed to object within ten days of their issuance by the magistrate judge. In the last appeal, we determined that the fees issue had been referred to the magistrate judge under § 636(b)(1)(B), and, as such, had been issued by the magistrate judge as a recommendation. Although we declined to decide whether ISN had waived its right to review of the recommendations by failing to file any objections with the district court within ten days of the issuance of the recommendations, the law at the time was clear: ISN had only ten days to request further review. See 28 U.S.C. § 636(b)(1) (West 2008) (“Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations .... ”). Moreover, we note that a party’s failure to object to a magistrate judge’s recommendations within ten days in either a nondispositive, Fed.R.Civ.P. 72(a), or a dispositive matter, Fed.R.Civ.P. 72(b), waives further review. “In this circuit, as in others, ‘a party “may” file objections within ten days or he may not, as he chooses, but he “shall” do so if he wishes further consideration.’ ” Wells v. Shriners Hospital, 109 F.3d 198, 199 (4th Cir.1997) (quoting Park Motor Mart v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980)). ISN also argues that the" }, { "docid": "4206377", "title": "", "text": "Gelpi for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) Fed.R.Civ.P.72 (b), and Local Rule 72.1(b). (Docket No. 9). Magistrate Gelpi filed a Report and Recommendation (“RR”) on June 10, 2005. (Docket No. 10). In a thorough report the Magistrate recommended that defendant’s benefits under Social Security be denied. Plaintiff timely filed his objection to the RR on June 23, 2005. (Docket No. 11). The Magistrate correctly and clearly pointed out that any objections to the RR must be filed with the Clerk of Court within ten (10) days after being served with a copy thereof. See Fed.R.Civ.P. 72(b) and Local Rule 72.1(b). Pursuant to Fed.R.Civ.P. 72(b), “[ajbsent objection by the plaintiffs, the district court had a right to assume that plaintiffs agreed to the magistrate’s recommendation.” Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.), cert. denied, 474 U.S. 1021, 106 S.Ct. 571, 88 L.Ed.2d 556 (1985). Moreover, “[f]ailure to raise objections to the Report and Recommendation waives that party’s right to review in the district court and those claims not preserved by such objection are precluded on appeal.” Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir.1992). See also Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994) (holding that objections are required when challenging findings actually set out in magistrate’s recommendation, as well as magistrate’s failure to make additional findings); Lewry v. Town of Standish, 984 F.2d 25, 27 (1st Cir.1993) (stating that “[objection to a magistrate’s report preserves only those objections that are specified”.); Keating v. Secretary of H.H.S., 848 F.2d 271, 275 (1st Cir.1988); Borden v. Secretary of H.H.S., 836 F.2d 4, 6 (1st Cir.1987) (holding that appellant was entitled to a de novo review, “however he was not entitled to a de novo review of an argument never raised”). See generally United States v. Valencias-Copete, 792 F.2d 4, 6 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980). After conducting a de novo review of the record, the Court has found that the RR thoroughly and correctly addressed the issues presented" }, { "docid": "13808439", "title": "", "text": "suppression (i.e., the suppressed evidence was material to guilt or punishment).” Conley v. United States, 415 F.3d 183, 187 (1st Cir.2005) (citing Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)). There is nothing in the petitioner’s bald assertions to support a claim for prosecutorial misconduct. Owens, 483 F.3d at 57 (movant’s allegations need not be accepted when they are inherently incredible). For the foregoing reasons the petitioner’s claim for prosecutorial misconduct is lacking in merit. V. Conclusion For all the above reasons, I RECOMMEND that (1) the petitioner’s motions under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (##259, 311) be DENIED, (2) the Court find as moot the Government’s motions for summary dismissal (##291, 312) and (3) Final Judgment enter accordingly. VI. Review by the District Judge The parties are hereby advised that any party who objects to this recommendations must file a specific written objection thereto with the Clerk of this Court within 14 days of the party’s receipt of this Report and Recommendation. The written objections must specifically identify the portion of the recommendations, or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with Rule 72(b), Fed.R.Civ.P., shall preclude further appellate review. See Keating v. Secretary of Health and Human Services, 848 F.2d 271 (1st Cir.1988); United States v. Emiliano Valencia-Copete, 792 F.2d 4 (1st Cir.1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir.1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir.1980); see also Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Filed Feb. 12, 2014. . Also indicted on that day were three other co-defendants: Jean Janvier, Gerald Scott, and Fernando Phillips. These co-defendants were also charged with selling crack cocaine in the same area as Smoak. See PSR ¶¶ 11-12. . Although Smoak" }, { "docid": "7227031", "title": "", "text": "Finally, as noted above, the ideas that Plaintiffs claim are original to Brown, in fact, are not novel; they have been in the public domain for years. Therefore, they cannot be protected by copyright for this reason as well. Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345, 111 S.Ct. 1282, 1287, 113 L.Ed.2d 358 (1991). For all the foregoing reasons, Plaintiffs’ claim for copyright infringement, assuming they are making such claim, must fail. IV. CONCLUSION For the foregoing reasons, I recommend that ATC’s summary judgment motion (Docket no. 43) and Armstrong’s summary judgment motion (Docket no. 40) be GRANTED. Y. IMPORTANT NOTICE OF RIGHT TO OBJECT AND WAIVER OF RIGHT TO APPEAL FOR FAILURE TO DO SO WITHIN TEN DAYS The parties are hereby advised that under the provisions of Rule 3(b) of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts, any party who objects to these proposed findings and recommendations must file a written objection thereto with the Clerk of this Court WITHIN 10 DAYS of the party’s receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations, or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Ap peals for this Circuit has indicated that failure to comply with this rule shall preclude further appellate review by the Court of Appeals of the District Court’s order entered pursuant to this Report and Recommendation. See United States v. Valencias-Copete, 792 F.2d 4 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir.1980); United States v. Vega, 678 F.2d 376 (1st Cir.1982); Scott v. Schweiker, 702 F.2d 13 (1st Cir.1983); see also Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). . Defendant Wally Golf is a separate corporate entity established by ATC. Since nothing in this litigation turns on a distinction between the two, this opinion will refer to both as ATC. . Defendants" }, { "docid": "12700194", "title": "", "text": "construed to “secure just ... determination of every action” and to “do substantial justice.” See Fed.R.Civ.P. 1 and 8. Considering all the factors involved here, including the government’s notice and the amended Federal Rule, it would surely be unjust for this Court to dismiss plaintiff’s complaint for the reasons put forth by the government. Recommendation Accordingly, I recommend that defendant United States’ motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) be denied. . 28 U.S.C. § 2675(a) reads, in part: \"An action shall not be instituted upon a claim against the United States ... unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing by certified or registered mail.\" . Fed.R.Civ.P. 15(a) states, in part: \"A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served____ Otherwise a party may amend the party’s pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.\" (emphasis added). . Any objection to this Recommendation must be specific and must be filed with the Clerk of Court within ten (10) days of the receipt of the Recommendation. Rule 32, Local Rules of Court; Rule 72(b), Fed.R.Civ.P. Failure to timely file specific objections to the magistrate judge’s Recommendation, Findings or Report is a waiver of the right to review by the District Court. Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir.1980)." }, { "docid": "17286038", "title": "", "text": "the alternative ground that she is not subject to personal jurisdiction in the British Columbia Supreme Court. IV. SUMMARY AND RECOMMENDATION For the reasons stated above, I recommend that K & R’s motion for summary judgment (Docket No. 23) be DENIED as to all defendants. V. IMPORTANT NOTICE OF RIGHT TO OBJECT AND WAIVER OF RIGHT TO APPEAL FOR FAILURE TO DO SO WITHIN TEN DAYS The parties are hereby advised that under the provisions of Rule 3(b) of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts, any party who objects to these proposed findings and recommendations must file a written objection thereto with the Clerk of this Court WITHIN 10 DAYS of the party’s receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations, or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has indicated that failure to comply with this rule shall preclude further appellate review by the Court of Appeals of the District Court’s order entered pursuant to this Report and Recommendation. See United States v. Valencia-Copete, 792 F.2d 4, 5-6 (1st Cir.1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); United States v. Vega, 678 F.2d 376, 379 (1st Cir.1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980); see also Thomas v. Am, 474 U.S. 140, 148-149, 106 S.Ct. 466, 471-472, 88 L.Ed.2d 435 (1985), reh’g denied, 474 U.S. 1111, 106 S.Ct. 899, 88 L.Ed.2d 933 (1986). . The copy of the agreement included in the summary judgment record is undated, but the dates May 30, 1993 and June 7, 1993, apparently associated with facsimile transmission, appear on the signature page. Robinson filed an affidavit dated September 16, 1994, in the Supreme Court of British Columbia in which he stated that the agreement was executed on or about June 7, 1993. (Affidavit of Reg Robinson filed in the Supreme Court of British" }, { "docid": "5501207", "title": "", "text": "CT Scan Division that was not also a bargaining unit position. Therefore, although a reading of Article 18 § 6(a) is not clear as to the definition of “seniority group,” a reading of other related provisions in the CBA clarifies the meaning of that term and resort to extrinsic evidence is unnecessary. Since I find the term “seniority group” to be unambiguous and inclusive of only those in technical bargaining units and plaintiff is not in such a unit, plaintiff is not a member of a seniority group. Although I find that by the unambiguous terms of the CBA plaintiff is not a member of a seniority group, his status as such is not relevant if plaintiffs interpretation of Article 18 § 6(a) prevails. Because I find that § 6(a) is ambiguous and not clarified sufficiently by the extrinsic evidence presented, I recommend that defendants’ motion for summary judgment be denied. Conclusion For the reasons stated, I recommend that defendant Union’s Rule 12(b)(1) motion to dismiss be denied. I also recommend that the Rule 56 motion for summary judgment brought by all the defendants be denied. Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of Court within ten (10) days of its receipt. Fed.R.Civ.P. 72(b); Local Rule 32. Failure to file timely, specific objections to the report constitutes waiver of both the right to review by the district court and the right to appeal the district court’s decision. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir.1980). Feb. 18, 1999." }, { "docid": "11138864", "title": "", "text": "that it remand the regulations back to the defendants, requiring them to explain further how 50 C.F.R. § 648.94(b)(2)(iii) and (v) comport with National Standard Five of the Magnuson Stevens Act. See Maine v. Kreps, 563 F.2d at 1056; Celcom Communications Corp. v. FCC, 789 F.2d 67, 71 (D.C.Cir.1986). Conclusion For the aforementioned reasons, I recommend that this court grant plaintiffs’ motion for summary judgment as to Counts One, Three and Four of the Hall Complaint; Counts One, Three and Four of the Lund’s Fisheries Complaint; and Counts One, Three and Four of the McCann Complaint. I conversely recommend that the court deny plaintiffs’ motion for summary judgment as to all other Counts in all four Complaints. I also recommend that defendants’ motion for summary judgment be granted as to all Counts of the Reaper complaint; Counts Two, Five and Six of the Hall Complaint; Counts Two, Five and Six of the Lund’s Fisheries Complaint; and Counts Two, Five and Six of the McCann Complaint. Finally, I recommend that the regulations 50 C.F.R. § 648.94(b)(2)(iii) and 50 C.F.R. § 648.94(b)(2)(v) be set aside pending further proceedings based on the regulations’ failure to comport with National Standard Two of the Magnuson Stevens Act. Alternatively, I recommend that the court remand the regulations to the Secretary of Commerce and require that the Secretary or his designees provide evidence that the regulations comport with National Standard Five of the Magnuson Stevens Act. Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of Court within ten (10) days of its receipt. See Rule 32, Local Rules of Court; Fed.R.Civ.P. 72(b). Failure to file specific objections in a timely manner constitutes a waiver of the right to review by the District Court and the right to appeal the District Court’s decision. See United States v. Valencia-Copete, 792 F.2d 4 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir.1980). . Plaintiff F/V Reaper, Inc. is a corporation organized and existing under the laws of the State of Rhode Island with its principal" }, { "docid": "5383087", "title": "", "text": "Court grant all of the remaining motions to dismiss (ECF Nos. 37, 38, 39 and 40), dismissing with prejudice (i) all claims against all Defendants arising under 42 U.S.C. § 1983 based on the First, Fifth and Fourteenth Amendments of the United States Constitution; (ii) all state law claims against the Town of Narragansett; and (iii) all claims against the Roman Catholic' Bishop of Providence. In addition, I recommend that all claims arising under state law against the Churches be dismissed without prejudice to being refiled in the state court. Any objection to this report and recommendation must be specific and must be served and filed with the Clerk of the Court within fourteen (14) days after its service on the objecting party. See Fed.R.Civ.P. 72(b)(2); D.R.I. LR Cv 72(d). Failure to file specific objections in a timely manner constitutes waiver of the right to review by the district judge and the right to appeal the Court’s decision. See United States v. Lugo Guerrero, 524 F.3d 5, 14 (1st Cir.2008); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980). Oct. 10, 2014. . Mr. Devaney also named Peter F. Kilmartin, Attorney General of the State of Rhode Island. Because the Second Amended Complaint is devoid of substantive factual allegations against the Attorney General, naming him only because R.I. Gen. Laws § 9-30-11 requires a plaintiff who challenges the constitutionality of a local ordinance to give him notice, I recommended that all claims against him be dismissed with prejudice and Senior Judge Lagueux accepted my recommendation. ECF Nos. 35, 51. The Attorney General is no longer a party in this case. . These facts are derived from Mr. Devaney’s Second Amended Complaint. Because these motions arise under Fed.R.Civ.P. 12(b)(6), I take as true all well-pleaded factual allegations and afford Mr. Devaney the benefit of all reasonable inferences. Butler v. Balolia, 736 F.3d 609, 612 (1st Cir.2013). Because Mr. Devaney has purported to incorporate by reference all of the factual allegations in his earlier Amended Complaint, I reach back to the earlier pleading and also take as" }, { "docid": "18238260", "title": "", "text": "At most, the plaintiffs have alleged that Harmon notified Altar of Wells Fargo’s intent to foreclose on the Property at a time when Wells Fargo had not yet become the holder of Altar’s mortgage. “Though the defendant may have engaged in some legally cognizable wrongdoing, and though the [plaintiffs] may have suffered greatly, there is no indication that the defendant's actions were extreme and outrageous.” Alpino v. JPMorgan Chase Bank, Nat’l Ass’n, Civil No. 1:10-12040-PBS, 2011 WL 1564114, at *8 (D.Mass. Apr. 21, 2011) (slip op.) (dismissing claim for intentional infliction of emotional distress based on defendant’s failure to consider plaintiff for a mortgage modification and failure to conduct an open and fair foreclosure sale). . In light of this court’s conclusion that the plaintiffs have failed to allege a requisite element of their claim for intentional infliction of emotional distress against Harmon, it is unnecessary to evaluate whether they also have failed to state a claim because the litigation privilege protects Harmon from liability arising from its alleged actions in connection with non-judicial foreclosure proceedings conducted pursuant to the statutory power of sale. . The parties are hereby advised that under the provisions of Fed.R.Civ.P. 72 any party who objects to these proposed findings and recommendations must file a written objection thereto with the Clerk of this Court within 14 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with this Rule shall preclude further appellate review. See Keating v. Sec’y of Health & Human Servs., 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604-605 (1st Cir. 1980); United States v. Vega, 678 F.2d 376, 378-79 (1st Cir.1982); Scott v. Sckweiker, 702 F.2d 13, 14 (1st Cir.1983); see also Thomas" }, { "docid": "5383086", "title": "", "text": "108 S.Ct. 614, 98 L.Ed.2d 720 (1988)). In the end, the decision is “pragmatic and case-specific.” Delgado v. Pawtucket Police Dep’t, 668 F.3d 42, 48 (1st Cir.2012). In this instance, with the federal questions disposed of at the pleading stage, principles of comity auger strongly in favor of dismissal without prejudice, leaving Mr. Devaney free to bring his nuisance claims in state court. Hanover Sch. Dist., 626 F.3d at 6 n. 12 (proper exercise of discretion to decline to exercise supplemental jurisdiction over remaining state law claims based on principles of comity after Establishment Clause claim arising from voluntary recitation of Pledge of Allegiance in schools dismissed for failure to state a claim). I note that, as long as such claims are filed within thirty days after the federal court declines supplemental jurisdiction, 28 U.S.C. § 1367(d) tolls the statute of limitations. Brown v. City of Boston, 98 F.3d 1333, at *1 (1st Cir.1996) (per curiam) (statute of limitations tolled for thirty days when federal court declines supplemental jurisdiction). IV. Conclusion I recommend that this Court grant all of the remaining motions to dismiss (ECF Nos. 37, 38, 39 and 40), dismissing with prejudice (i) all claims against all Defendants arising under 42 U.S.C. § 1983 based on the First, Fifth and Fourteenth Amendments of the United States Constitution; (ii) all state law claims against the Town of Narragansett; and (iii) all claims against the Roman Catholic' Bishop of Providence. In addition, I recommend that all claims arising under state law against the Churches be dismissed without prejudice to being refiled in the state court. Any objection to this report and recommendation must be specific and must be served and filed with the Clerk of the Court within fourteen (14) days after its service on the objecting party. See Fed.R.Civ.P. 72(b)(2); D.R.I. LR Cv 72(d). Failure to file specific objections in a timely manner constitutes waiver of the right to review by the district judge and the right to appeal the Court’s decision. See United States v. Lugo Guerrero, 524 F.3d 5, 14 (1st Cir.2008); Park Motor Mart, Inc. v." }, { "docid": "16232181", "title": "", "text": "the alleged breach occurred in Massachusetts and that a transfer is not appropriate. If the District Judge to whom this case is assigned disagrees with the conclusion that the alleged breach occurred in Massachusetts, I RECOMMEND that the plaintiff be permitted to do some discovery on the underlying facts upon which a decision can be made as to whether the Plan is “found” in Massachusetts. VI. Review by the District Judge The parties are hereby advised that pursuant to Rule 72, Fed.R.Civ.P., any party who objects to these proposed findings and recommendations must file a specific written objection thereto with the Clerk of this Court within 10 days of the party’s receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations, or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with Rule 72(b), Fed.R.Civ.P., shall preclude further appellate review. See Keating v. Secretary of Health and Human Services, 848 F.2d 271 (1st Cir.1988); United States v. Emiliano Valencia-Copete, 792 F.2d 4 (1st Cir.1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir.1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir.1980); see also Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). . In the latter part of April, 2001, this case was referred to the undersigned for the conduct of Rule 16(b) and/or pretrial proceedings. The motion to dismiss now under consideration shall be determined on a report and recommendation basis in accordance with 28 U.S.C. § 636(b). . Central States has admitted these identifying facts in its answer. (Answer ¶ 3 § 2) . According to Exhibit C to the Affidavit of Michael Neuman (¶ 6), Ms. McClellan was covered under the health insurance of her husband, James McClellan. James B. McClellan was the \"participant” in the Plan; Ms. McClellan was the \"beneficiary” as those" }, { "docid": "113032", "title": "", "text": "that the borrower's subjective understanding of the creditor's notice is relevant to determine whether the notice violated the CCCDA. In Mechanics, the court found that the absence of a bank's name from one form, as required by law, was \"insignificant and unintended” and did not allow for penalties based on a failure to disclose information since the information had otherwise been disclosed. 384 N.E.2d at 1238. The case does not address the situation where the consumer's fundamental right to rescind was confusing. Nor does it specifically address whether the legality of a rescission notice under the CCCDA must be evaluated using an objective or a subjective standard. . The court is aware of plaintiffs’ counsel’s letter advertising a client's $50,000 savings from the rescission of his mortgage loan, as well as the three individual rescission demands from Rhode Island consumers that followed. See First Horizon's Supplemental Memorandum in Opposition to Plaintiffs’ Motion for Class Certification (Docket No. 32), Exs. A & B. However, this information does not indicate whether the potential plaintiffs would be willing to proceed on an individual basis. . The parties are hereby advised that under the provisions of Fed.R.Civ.P. 72 any party who objects to these proposed findings and recommendations must file a written objection thereto with the Clerk of this Court within 10 days of the party’s receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with this Rule shall preclude further appellate review. See Keating v. Sec'y of Health & Human Servs., 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604-605 (1st Cir.1980); United States v. Vega, 678 F.2d 376, 378-79 (1st Cir.1982); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); see also Thomas v. Arn, 474 U.S. 140," }, { "docid": "20044611", "title": "", "text": "not been met by plaintiff. Further, the First Circuit has also held that “plaintiff need only establish that the defendants’ acts or omissions were the product of reckless or callous indifference to his constitutional rights and that they, in fact, caused his constitutional deprivations.” Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 567 (1st Cir.1989). Here, the allegations made by the plaintiff, taken as true for the purpose of this motion, could demonstrate a “reckless or callous” indifference to plaintiff’s constitutional rights. Having found that plaintiff’s complaint could state a claim upon which relief could be granted against defendants Montecalvo, Rotelli and Sabolewski, the motion to dismiss as it pertains to these defendants should be denied. A magistrate judge’s Finding and Recommendation is filed herewith pursuant to Title 28 U.S.C. Section 636(b)(1)(B). Any objection to this Recommendation must be specific and must be filed with the Clerk of Court within ten (10) days of the receipt of the Recommendation. Rule 32, Local Rules of Court; Rule 72(b), Fed.R.Civ.P. Failure to timely file specific objections to the magistrate judge’s Recommendation, Findings or Report is a waiver of the right to review by the District Court. Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir.1980); United States v. Valencia-Copete, 792 F.2d 4 (1st Cir.1986). A review of the magistrate judge’s Recommendation by a District Judge does not necessarily confer entitlement as of right to a de novo hearing and does not permit consideration of issues not raised before the magistrate judge. Paterson Leitch v. Massachusetts Elec., 840 F.2d 985 (1st Cir.1988). Recommendation Defendant’s motion to dismiss should be denied against defendants Montecalvo, Sabolewski and Rotelli. The motion to dismiss on behalf of the other named defen dants should be granted. It is so recommended to the Court. ORDER The Report and Recommendation of United States Magistrate Jacob Hagopian filed on February 11, 1991 in this action is accepted pursuant to Title 28, United States Code, Section 636(b)(1), since no objection has been timely filed and the time for objecting has expired." }, { "docid": "1071090", "title": "", "text": "of that handicap within the meaning of § 42-112-1. Therefore, the claim based thereon must fail, and Count Seven of the Amended Complaint should be dismissed. Conclusion Based on the foregoing analysis, I recommend that the Union Defendants’ Motion to Dismiss the Amended Complaint be granted. Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of Court within ten (10) days of its receipt. Failure to file specific objections in a timely manner constitutes a waiver of the right to review by the district court. . Plaintiff does not assert a claim pursuant to Title I of the LMRDA, 29 U.S.C. §§ 411-415, the so called Bill of Rights of Members of Labor Organizations. 29 U.S.C. § 411(a)(2) specifically protects a union member’s rights to freedom of speech and assembly against infringement by the union. To succeed on a claim that the union violated this section, a plaintiff union member must prove by clear and convincing evidence that the union engaged in purposeful and deliberate attempts to suppress dissent within the union. Rodonich v. House Wreckers Union Local 95, 817 F.2d 967, 973 (2d Cir.1987). Nowhere in the Amended Complaint does plaintiff allege facts that would demonstrate that the Union Defendants' actions against the plaintiff resulted from their deliberate intent to suppress dissent. Thus, the Amended Complaint cannot be construed to set forth a viable claim pursuant to Title I of the LMRDA, 29 U.S.C. §§ 411-415. . Rule 32, Local Rules of Court,; Fed.R.Civ.P. 72(b). . United States v. Valencia-Copete, 792 F.2d 4 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir.1980)." }, { "docid": "11138865", "title": "", "text": "and 50 C.F.R. § 648.94(b)(2)(v) be set aside pending further proceedings based on the regulations’ failure to comport with National Standard Two of the Magnuson Stevens Act. Alternatively, I recommend that the court remand the regulations to the Secretary of Commerce and require that the Secretary or his designees provide evidence that the regulations comport with National Standard Five of the Magnuson Stevens Act. Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of Court within ten (10) days of its receipt. See Rule 32, Local Rules of Court; Fed.R.Civ.P. 72(b). Failure to file specific objections in a timely manner constitutes a waiver of the right to review by the District Court and the right to appeal the District Court’s decision. See United States v. Valencia-Copete, 792 F.2d 4 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir.1980). . Plaintiff F/V Reaper, Inc. is a corporation organized and existing under the laws of the State of Rhode Island with its principal place of business in South Kingstown, Rhode Island. Plaintiff Gregory N. Duckworth is the owner of all of the shares of F/V Reaper, Inc.’s stock and captain of the F/V Reaper vessel. . Plaintiff Canyon Industries, Inc. joined this action on December 6, 1999 when the plaintiffs filed an amended complaint for injunc-tive and declaratory relief. . This Court has jurisdiction to review these rules pursuant to 16 U.S.C. § 1855(f), 5 U.S.C. § 701 et seq., and 5 U.S.C. § 611. . The Fishery Management Plan established a system for the issuance of permits authorizing the fishing of monkfish to address market concerns regarding the over-fishing of monk-fish. See 50 C.F.R. § 648.1 et seq. (1999). . Several Counts in the various Complaints have not been briefed at all in the plaintiffs' consolidated memorandum of law. For all of these, I recommend that the court grant summary judgment to the defendants. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990) (“It is not enough merely to mention a possible argument in the" }, { "docid": "17416886", "title": "", "text": "at 428, 82 S.Ct. 468). Infid that petitioner’s motion under 2255 is meritless. In view of the above, I recommend that petitioner’s motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 be DENIED without evidentiary hearing. Under the provisions of Rule 72(d), Local Rules, District of Puerto Rico, any party who objects to this report and rec ommendation must file a written objection thereto with the Clerk of this Court within fourteen (14) days of the party’s receipt of this report and recommendation. The written objections must specifically identify the portion of the recommendation, or report to which objection is made and the basis for such objections. Failure to comply with this rule precludes further appellate review. See Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir.1992); Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985 (1st Cir.1988); Borden v. Sec’y of Health & Human Servs., 836 F.2d 4, 6 (1st Cir.1987); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); United States v. Vega, 678 F.2d 376, 378-79 (1st Cir.1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir.1980). February 13, 2012. . Co-defendant Angel Rafael Romero Santana was designated as defendant number one; co-defendant Luis A. Berroa-Santana was designated as defendant number two; and Petilioner Espinal-Gutierrez was designated as the third defendant (collectively, the “Defendants”). . Under the Strickland test, Petitioner has the burden of showing that (1) counsel's performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel’s error, the result of the proceedings would have been different. Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 1482, 176 L.Ed.2d 284 (2010) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052); see Argencourt v. United States, 78 F.3d 14, 16 (1st Cir.1996); Scarpa v. Dubois, 38 F.3d 1, 8 (1st Cir.1994); Lema v. U.S., 987 F.2d 48, 51 (1st Cir.1993); López-Nieves v. United States, 917 F.2d 645, 648 (1st Cir. 1990) (citing Strickland, 466" } ]

[ { "docid": "5984945", "title": "", "text": "a corporation that had lost its charter from a dissolved corporation. It held that the former could be sued but suggested that the latter might not be subject to suit under the applicable state law. 579 F.Supp. at 827-28 n. 1. The court of appeals found the distinction valid and affirmed the district court’s conclusion on NEPACCO’s capacity to be sued. 810 F.2d at 746-47. Because the corporation was subject to suit under the applicable state law, the court did not have to determine whether CERCLA might override state law in such a case. Northeastern Pharmaceutical is therefore inapplicable to this action. In the second case the trust relies on, Levin Metals Corp. v. Parr-Richmond Terminal Co., 631 F.Supp. 303 (N.D.Cal.1986), aff'd, 817 F.2d 1448 (9th Cir.1987), the owner of a hazardous waste site (Levin Metals) sued the former owners to recover cleanup costs and to establish their liability for future costs. One of the defendants, Parr Industrial Corporation (PIC), a dissolved California corporation, moved to dismiss on the ground that it lacked the capacity to be sued. Under California law a dissolved corporation could only be sued on a cause of action “arising prior to its dissolution.” PIC argued that the plaintiffs CERCLA claim was a post-dissolution claim because it could not have arisen before 1980, when CERCLA was enacted, and PIC was dissolved in 1971. The trial court agreed and dismissed the action against PIC. But see Abington Heights School Dist. v. Speedspace Corp., 693 F.2d 284 (3d Cir.1982) (holding that, under California law, a dissolved corporation “is subject to suit arising out of its pre-dissolution activities”). The court of appeals affirmed. Levin Metals Corp. v. Parr-Richmond Terminal Co., 817 F.2d 1448 (9th Cir.1987). Although the trial court had not considered the effect of CERCLA on state law, incorporated by rule 17(b), the Ninth Circuit did. On appeal, Levin Metals argued that, “to the extent that California law prevents imposition of liability on a dissolved corporation, it impedes and obstructs the basic purposes of CERCLA, and is invalid.” 817 F.2d at 1451. The court of appeals rejected the" } ]

[ { "docid": "14603802", "title": "", "text": "DAVID R. THOMPSON, Circuit Judge: In this appeal we hold that the statute of limitations of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) does not preempt a Washington statute which prescribes the time within which a dissolved corporation retains its capacity to be sued. See Levin Metals Corp. v. Parr-Richmond Terminal Co., 817 F.2d 1448 (9th Cir.1987). Therefore, a suit filed against a dissolved corporation outside the period of the state corporate-capacity statute, but within the CERCLA statute of limitations, may not be maintained. We also hold that the district court did not abuse its discretion in denying the complainant’s motion to relate an amendment, naming the dissolved corporation as a defendant, back to the date of the filing of the original complaint. See Fed.R.Civ.P. 15(c). FACTS AND PROCEEDINGS In an opinion filed this date in a related appeal, case No. 92-35061, we held that AS-ARCO, Incorporated, appellant in this ease, is liable for response costs under CERCLA for the cleanup of copper slag at various sites in the State of Washington. ASARCO sold the slag to Black Knight, Inc., a subsidiary of Industrial Mineral Products (“IMP”), a Washington corporation. Black Knight agreed to pay ASARCO a portion of whatever it could get by selling the slag. The slag was sold to logyards where it was spread on the ground to provide a firm base on which to operate logging equipment. Eventually it was taken from the logyards and dumped into a landfill. When the owners and operators of the sites where the slag was deposited discovered its interaction with chemicals released by the woodwaste caused the slag to leach heavy' metals into the groundwater, they sued AS-ARCO for cleanup costs. ASARCO in turn filed a third-party complaint for contribution or indemnification against L-Bar Products, Inc., alleging it to be the successor-in-interest to IMP. L-Bar had bought IMP’s assets. ASARCO later added IMP as an additional third-party defendant. The district court dismissed L-Bar from the case on the ground that it was not a successor-in-interest to IMP. We affirmed. Louisiana-Pacific Corp. v. ASARCO, Inc., 909 F.2d 1260 (9th" }, { "docid": "6630434", "title": "", "text": "the proper treatment and disposal of hazardous substances on those who generate these dangerous compounds and arrange for their disposal or treatment. In short, Defendants cannot eschew their responsibilities under CERCLA merely because they allegedly did not know the location or methods of [the disposer’s business. 858 F.Supp. at 1142. The court finds that a similar result should obtain here, and the defendants’ motion for summary judgment on the issue of personal jurisdiction will be denied. Dead and Buried Jet Star Industries, B & R Oil, and Hal-verwood Company have moved for summary judgment contending that, having been dissolved and having distributed their assets, they are “dead and buried corporations” and thus not subject to CERCLA liability. CERCLA § 107(a) subjects to liability “any person” who performs the specified activities involving the release of hazardous substances. CERCLA § 101(21) defines “person” as including a corporation, but does not directly speak to the status of dissolved corporations. It has been held that CERC-LA preempts state laws governing corporate capacity to be sued. United States v. Sharon Steel Corp., 681 F.Supp. 1492 (D.Utah 1987). In Sharon Steel, the court addressed the status under CERCLA of a dissolved corporation, and concluded that dissolution of a corporation without distribution of the corporation’s assets did not immunize the corporation from CERCLA liability. The court both distinguished and explicitly refused to decide what would happen after distribution of the corporation’s assets: Nor is the court faced with a situation in which the corporation’s assets have been fully distributed and its affairs completely wound up, that is, where the corporation is not only dead but also buried. Here, the funeral is still going on. 681 F.Supp. at 1498. Although Sharon Steel itself did not direct•ly resolve the status of dead and buried corporations, most of the recent decisions have both followed the distinction made in that decision and further concluded that once the dead corporation is in the ground, it is no longer a “person” amenable to suit under CERCLA. Chatham Steel Corp. v. Brown, 858 F.Supp. 1130, 1152 (N.D.Fla.1994); AM Properties Corp. v. GTE Products, 844" }, { "docid": "22998080", "title": "", "text": "arises where the right to recovery created by the Act confronts state law governing business entities like corporations and partnerships. Although there is a dearth of authority regarding CERCLA’s interaction with state partnership law, courts have been called upon to resolve issues of CERCLA liability for corporations and their shareholders. For example, courts in CERCLA actions have had to determine when to “pierce the corporate veil” to hold a corporation’s shareholders liable, see United States v. Cordova Chem. Co., 59 F.3d 584, 592 (6th Cir.), reh’g en banc granted and judgment vacated, 67 F.3d 586 (6th Cir.1995); Lansford-Coaldale Joint Water Auth. v. Tonolli Corp., 4 F.3d 1209, 1224-25 (3d Cir.1993), whether a corporation can be held accountable as a “successor” corporation for its predecessor’s CERCLA liability, see Anspec Co. v. Johnson Controls, Inc., 922 F.2d 1240, 1244-47 (6th Cir.1991); Smith Land, 851 F.2d at 90-92, and whether a dissolved corporation is subject to suit under CERCLA, see Levin Metals Corp. v. Parr-Richmond Terminal Co., 817 F.2d 1448, 1450-51 (9th Cir.1987); United States v. Sharon Steel Corp., 681 F.Supp. 1492, 1494-98 (D.Utah 1987). In resolving questions of liability for shareholders, officers and employees of corporations under CERCLA, courts have reached different conclusions on whether state or federal common law provides the rule of decision. Compare Anspec Co., 922 F.2d at 1248-51 (Kennedy, J., concurring) (reasoning state law governs the issue of corporate successor liability under CERCLA) with Smith Land, 851 F.2d at 91-92 (stating federal common law standard should govern successor liability) and Louisiana-Pacific Corp. v. Asarco, Inc., 909 F.2d 1260, 1263 (9th Cir.1990) (agreeing with Smith Land on this question). Ultimately, federal law determines the issue of CERCLA liability. CERCLA is a federal statute targeting a national problem: the cleanup of hazardous waste sites. Consequently, the rights and liabilities created by CERCLA are governed by federal law. See United States v. Kimbell Foods, Inc., 440 U.S. 715, 726-28, 99 S.Ct. 1448, 1457-58, 59 L.Ed.2d 711 (1979); Clearfield Trust Co. v. United States, 318 U.S. 363, 366-67, 63 S.Ct. 573, 574-75, 87 L.Ed. 838 (1943). The Supreme Court has cautioned, however," }, { "docid": "21263575", "title": "", "text": "of limitations “extinguishes the right to prosecute an accrued cause of action after a period of time.” Burlington N. & Santa Fe Ry. Co. v. Poole Chem. Co., 419 F.3d 355, 362-63 (5th Cir.2005). In contrast, Delaware’s section 278 defines a dissolved corporation’s capacity to be sued, creating a right for dissolved corporations and their former shareholders to be free from suit after a period of time. See id. As the State points out, an important goal of CERCLA’s statute of limitations is to allow time for parties to gauge response costs before the suit is filed, H.R.Rep. No. 99-253, pt. 3, at 20 (1985), reprinted in 1986 U.S.C.C.A.N. 3038, 3043; thus, the applicable CERCLA statute of limitations in this case did not begin to run until “6 years after initiation of physical on-site construction of the remedial action.” 41 U.S.C. § 9613(g)(2)(B). The Delaware statute limiting capacity to be sued does not necessarily interfere with this goal, however, because it provides for potentially indefinite extension of the three-year wind-up period in the discretion of the Court of Chancery. Del.Code Ann. tit. 8, § 278. Delaware’s statute limits capacity to be sued, not liability, and thus does not conflict with CERCLA’s statute of limitations — even if in operation the state law precludes the CERCLA plaintiff from recovering in some circumstances. See Witco, 38 F.3d at 690; Louisiana-Pac. Corp. v. ASARCO, Inc., 5 F.3d 431, 433-34 (9th Cir.1993); Onan, 770 F.Supp. at 494-95; Levin Metals Corp. v. Parr-Richmond Terminal Co., 817 F.2d 1448, 1451 (9th Cir.1987). The State analogizes this case to Bed-ford Affiliates, where we held that CERC-LA preempted state-law claims for restitution and indemnification. 156 F.3d at 427. In that case, however, the plaintiffs’ state-law claims for restitution and indemnification stood in the way of CERCLA’s objective of encouraging settlement, which it achieves by restricting the availability of contribution actions. The restitution and indemnification claims would have given the plaintiffs an alternative to the contribution action withheld by CERCLA, which flies in the face of the federal goal of encouraging settlements. CERCLA’s statute of limitations and Delaware’s corporate" }, { "docid": "21135809", "title": "", "text": "and Order, this court determined that CERCLA preempted Florida law so that Universal Marion, which was dissolved in 1984, could be sued under CERC-LA, notwithstanding the fact that more than three years had passed from the date of dissolution, the statute of limitations period under Florida law. The issue raised by Witben and Universal Marion is a controlling issue of law as, if CERCLA does not preempt Florida state law on this issue, Universal Marion may not be sued under CERCLA. As a reversal of the court’s order would terminate the action as to Universal Marion, the issue can be deemed controlling. Klinghoffer, supra, at 24. The issue remains, however, as to whether or not there is a substantial ground for a difference of opinion on this question. In its February 16, 1996 Decision, this court noted that courts have disagreed as to the liability of a dissolved corporation under CERCLA, but found that the majority of courts have held that CERCLA preempts state capacity laws to the extent their operation would shield a dissolved corporation from CERCLA liability. Decision and Order, 915 F.Supp. at 1303. While as of the date of this Decision and Order, the Second Circuit has still not yet ruled on the issue, another judge of this district also recently held that CERCLA preempts state capacity laws. State of New York v. Panex Industries, 1996 WL 378172 at *5 (W.D.N.Y.1996) (CERCLA supersedes Fed.R.Civ. P. 17(b) and preempts state law in CERCLA actions for recovery of costs and damages) (citing eases). In contrast, the Third, Eighth, and Ninth Circuits have held that state corporation capacity statutes are not preempted by CERCLA. Witco Corp. v. Beekhuis, 38 F.3d 682 (3d Cir.1994); Louisiana-Pacific Corp. v. ASARCO, Inc., 5 F.3d 431, 433-34 (9th Cir.1993); Onan Corp. v. Industrial Steel Corp., 770 F.Supp. 490, 495 (D.Minn.1989), aff'd without op., 909 F.2d 511 (8th Cir.), cert. denied, 498 U.S. 968, 111 S.Ct. 431, 112 L.Ed.2d 414 (1990). Nonetheless, despite this split of authority among the federal courts, this court does not find it appropriate to certify this question to the Second Circuit." }, { "docid": "875540", "title": "", "text": "Corp., 681 F.Supp. 1492 (D.Utah 1987). “Person” is defined broadly in § 101 and includes “corporations.” 42 U.S.C. 9601(21). However, the statute is silent on the liability of dissolved corporations. The issue of a dissolved corporation’s liability under CERCLA was addressed by the District Court for the District of Utah in U.S. v. Sharon Steel Corp., 681 F.Supp. 1492 (D.Utah 1987). In Sharon Steel, the corporation was, though dissolved, still in the process of winding up its affairs. Sharon Steel, supra at 1498. The court described that corporation as still in the funeral process and distinguished that corporation from a corporation who was “not only dead but also buried.” Id. Thus, the court found the corporation liable under CERCLA. Sharon Steel, supra at 1500. Hence, the terminology used by the Sharon Steel court provides the basis for the federal common law surrounding this particular CERCLA issue. In Chatham Steel Corp., et al. v. Brown, et al., 858 F.Supp.1130 (N.D.Fla.1994), the court utilized the Sharon Steel language to determine “[t]he ‘dead and buried’ rule properly defines when a dissolved corporation should be subject to suit under CERCLA.” Chatham Steel Corp., at 1152. In Traverse Bay Area Intermediate School District v. Hitco, Inc., 762 F.Supp. 1298 (W.D.Mich.1991), the court held plaintiff was entitled to “determine whether the corporation ha[d] been ‘buried’ ” and was not merely “dead.” Hitco, Inc., at 1301. The Hitco court stated that if the corporation was determined to hold no assets, the corporation no longer exists and is not a “person” for CERCLA purposes. Id. at 1302. See also BASF Corp., et al. v. Central Transport, Inc., et al., 830 F.Supp. 1011 (E.D.Mich.1993) (where the court utilized to Hitco analysis to grant plaintiffs’ opportunity to conduct discovery in order to determine whether the corporation still possessed assets). But see Allied Corp., et al. v. Acme Solvents Reclaiming, Inc., et al., 1990 WL 322940 (N.D.Ill.1990) (where the court held a eorpo ration is subject to suit under CERCLA without regard to its current status). The court in Stychno v. Ohio Edison Co., 806 F.Supp. 663, 670 (N.D.Ohio 1992) held" }, { "docid": "3139729", "title": "", "text": "broadly enough to encompass any and all liabilities, or if environmental liability is clearly referred to in the agreement.” Id. at 9-10 (citing Hatco Corp., 801 F.Supp. at 1318; Purolator Prods. Corp., 772 F.Supp. at 132; Mobay Corp., 761 F.Supp. at 356; Southland Corp. v. Ashland Oil Inc., 696 F.Supp. 994 (D.N.J.1988)). After concluding that Alabama law on the meaning of contracts was not inconsistent with this developing standard of federal common law, the magistrate judge saw no impediment to interpreting the Agreement under Alabama contract law. Nevertheless, he pointed out that construction or interpretation of a pre-CERCLA indemnity clause’s effect on CERCLA liability might “be an issue best determined by a uniform federal rule ... and that the federal case law establishing the standard under CERCLA may override any inconsistent state law in this respect.” Id. at 10 n. 2. The first question that we should ask is whether the national interest in uniform application of federal statutory law requires federal courts to develop a federal common law to preclude willy-nilly use of various state law principles in interpreting or construing indemnification provisions that affect liabilities under CERCLA. Cf. O’Melveny & Myers v. Federal Deposit Insurance Corp., — U.S. -,-, 114 S.Ct. 2048, 2052-55, 129 L.Ed.2d 67 (1994). Generally, federal law governs the validity of an agreement releasing a cause of action arising under federal law; see Dice v. Akron, Canton & Youngstown R.R. Co., 342 U.S. 359, 361, 72 S.Ct. 312, 314, 96 L.Ed. 398 (1952), but the construction or interpretation of a private contract is generally thought to be a question of state law. Accordingly, most courts have recognized that imposition of CERCLA liability on a successor corporation is a question of federal law. See, e.g., John S. Boyd, Co. v. Boston Gas. Co., 992 F.2d 401, 406 (1st Cir.1993); Mardan Corp. v. C.G.C. Music, Ltd., 804 F.2d 1454, 1457 (9th Cir.1986); HRW Sys., Inc. v. Washington Gas Light Co., 823 F.Supp. 318, 326-28 (D.Md.1993); Chesapeake & Potomac Tel. Co. v. Peck Iron & Metal Co., 814 F.Supp. 1266, 1267-68 (E.D.Va.1992). Nevertheless, all of the courts of" }, { "docid": "14603806", "title": "", "text": "question we considered in Levin Metals. Washington’s statute, Wash.Rev. Code Ann. § 23A.28.250, determines the time within which a dissolved corporation retains its capacity to be sued. ASARCO contends that Levin Metals is distinguishable because there the defendant corporation had dissolved before CERCLA was enacted and there was no possibility its dissolution frustrated federal law. ASARCO argues that if we apply the Levin Metals rule to this case, we will approve of a rule by which a corporate defendant facing potential CERCLA liability can simply dissolve and escape financial responsibility for its CERC-LA cleanup costs. We rejected this argument in Levin Metals, and we do so here. Although state corporate-capacity statutes may operate to preclude CERCLA liability, that risk is inherent in the language of Rule 17(b), which provides “[t]he capacity of a corporation to sue or be sued shall be determined by the law under which it was organized.” Fed.R.Civ.P. 17(b); see also Onan Corp. v. Indus. Steel Corp., 770 F.Supp. 490, 495 (D.Minn.1989) (“[n]ot even the important policy goals underlying CERCLA c[ould] resurrect” a dead corporation), aff'd, 909 F.2d 511 (8th Cir.1990), cert. denied, 498 U.S. 968, 111 S.Ct. 431, 112 L.Ed.2d 414 In addition, in Washington, as in many states, this problem is mitigated by the opportunity to file a CERCLA action against a dissolved corporation for a considerable time after dissolution. ASARCO next contends that under Federal Rule of Civil Procedure 15(c) its amendment to include IMP as a defendant should relate back to June 10, 1988, the date it named L-Bar as a' third-party defendant. That date was within the two-year period following IMP’s dissolution. We review for abuse of discretion the question whether the district court erred in denying a motion under Rule 15(c). Kilkenny v. Arco Marine, Inc., 800 F.2d 853, 856 (9th Cir.1986), cert. denied, 480 U.S. 934, 107 S.Ct. 1575, 94 L.Ed.2d 766 (1987). In order for ASARCO’s proposed amendment to relate back to the date it sued L-Bar, four factors must be satisfied: (1) the [claim against IMP] must have arisen out of the conduct set forth in the original" }, { "docid": "3251630", "title": "", "text": "the extended deadline established by this court. of Hughes Chemical Defendant Robert Hughes asks this court to dismiss defendant Hughes Chemical Company because it has been dissolved and, therefore, is no longer subject to suit. Under Fed.R.Civ.P. 17(b), the “capacity of a corporation to sue or be sued shall be determined by the law under which it was organized.” Under Michigan law, Hughes Chemical can no longer be sued once it has completely wound up its affairs and distributed its assets. M.C.L.A § 450.1851(2). Because Hughes Chemical was dissolved in 1982, defendant argues that it is no longer subject to suit. Plaintiffs argue that Michigan law is preempted by the provisions of CERCLA Under CERCLA, liability attaches “[n]otwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section.” 42 U.S.C. § 9607(a)(2). Consequently, Rule 17(b) and the dictates of Michigan law would not limit the liability of a dissolved corporation under CERCLA. Furthermore, the dissolution of a corporation is not one of the defenses provided for by section 9607(b). This court agrees with the position of plaintiffs that CERCLA preempts Michigan law. Among courts that have addressed the issue, the clear trend is towards construing CERCLA to supersede Rule 17(b) and to preempt state law. City & County of Denver v. Adolph Coors Co., 813 F.Supp. 1471, 1474 (D.Colo.1992); Traverse Bay Area Intermediate School District v. Hitco, Inc., 762 F.Supp. 1298, 1301 (W.D.Mich.1991); United States v. Distler, 741 F.Supp. 643, 646 (W.D.Ky.1990); United States v. Sharon Steel Corp., 681 F.Supp. 1492, 1498 (D.Utah 1987). Only the Ninth Circuit in Levin Metals Corp. v. Parr-Richmond Terminal Co., 817 F.2d 1448 (9th Cir.1987) found that Rule 17(b) governs the CERCLA liability of dissolved companies. See also Columbia River Service Corp. v. Gilman, 751 F.Supp. 1448, 1453 (W.D.Wash.1990) (following Levin Metals, but sharply criticizing the decision). Congress intended that CERCLA provide for broad liability and that it supersede other laws or rules that would ordinarily limit that liability. Adolph Coors, 813 F.Supp. at 1474; Sharon Steel, 681 F.Supp. at 1498-99. Since environmental" }, { "docid": "21135810", "title": "", "text": "corporation from CERCLA liability. Decision and Order, 915 F.Supp. at 1303. While as of the date of this Decision and Order, the Second Circuit has still not yet ruled on the issue, another judge of this district also recently held that CERCLA preempts state capacity laws. State of New York v. Panex Industries, 1996 WL 378172 at *5 (W.D.N.Y.1996) (CERCLA supersedes Fed.R.Civ. P. 17(b) and preempts state law in CERCLA actions for recovery of costs and damages) (citing eases). In contrast, the Third, Eighth, and Ninth Circuits have held that state corporation capacity statutes are not preempted by CERCLA. Witco Corp. v. Beekhuis, 38 F.3d 682 (3d Cir.1994); Louisiana-Pacific Corp. v. ASARCO, Inc., 5 F.3d 431, 433-34 (9th Cir.1993); Onan Corp. v. Industrial Steel Corp., 770 F.Supp. 490, 495 (D.Minn.1989), aff'd without op., 909 F.2d 511 (8th Cir.), cert. denied, 498 U.S. 968, 111 S.Ct. 431, 112 L.Ed.2d 414 (1990). Nonetheless, despite this split of authority among the federal courts, this court does not find it appropriate to certify this question to the Second Circuit. “A certification pursuant to § 1292(b) is to be used only in extraordinaiy cases where a decision might avoid protracted and expensive litigation, and should not be used merely to provide review of difficult rulings in hard cases.” McCann v. Communications Design Corp., 775 F.Supp. 1506, 1534 (D.Conn.1991) (citing United States Rubber Co. v. Wright, 359 F.2d 784 785 (9th Cir.1966)). The court finds that, while there is a difference of opinion on the issue, certification of this question to the Second Circuit will not materially advance the ultimate termination of the litigation. Even if the Second Circuit were to agree with Universal Marion, APU would argue that Universal Marion was improperly dissolved, and thus, still subject to CERCLA liability, notwithstanding its purported dissolution. APU’s Memorandum of Law, at p. 15. To dismiss Universal Marion from this lawsuit, continue the proceedings with the remaining parties, and then to litigate the question of the propriety of Universal Marion’s dissolution, with a possible result that Universal Marion would indeed be subject to CERCLA liability would, in this" }, { "docid": "21263571", "title": "", "text": "in the context of the Financial Institutions Reform, Recovery, and Enforcement Act). We cannot conclude that Delaware law is an obstacle to the accomplishment of CERCLA’s objectives in this instance. The State’s strongest argument on this point is that CERCLA aims to hold corporations financially responsible for the environmental damage their activities cause, and dismissal of its claims under Delaware law will require taxpayers to pay for the Rochester Button cleanup, even though millions of dollars in Panex assets are traceable to the shareholder-distribu-tees. CERCLA recognizes, however, that recovery will not always be possible and manifests no intent that funds that once belonged to a party responsible for contamination should be frozen indefinitely or traced infinitely. See Onan Corp. v. Indus. Steel Corp., 770 F.Supp. 490, 494 (D.Minn.1989) (recognizing need to construe CERCLA broadly to achieve environmental and cost-assignment goals but stating that CERCLA’s reach is “not unlimited”), aff'd, 909 F.2d 511 (8th Cir.1990). That Delaware law, in affording dissolved corporations and their shareholders a measure of finality, operates to leave the State with no source of recovery in this case amounts to the type of “more money” argument the Supreme Court rejected in O’Melveny, 512 U.S. at 88, 114 S.Ct. 2048, 129 L.Ed.2d 67. It is not the sort of sharp conflict between state law and federal policy that justifies preemption. The district court documented the disagreement among federal courts on this issue. Many of the cases that hold that CERCLA preempts state limits predate Supreme Court precedent strongly admonishing courts against displacing state law lightly, see, e.g., O’Melveny, 512 U.S. at 88, 114 S.Ct. 2048. In light of that precedent and CERCLA’s limits we join those Courts of Appeals that have held that CERCLA does not preempt state statutes that limit a party’s capacity to be sued. See Levin Metals Corp. v. Parr-Richmond Terminal Co., 817 F.2d 1448, 1451 (9th Cir.1987); Onan Corp. v. Indus. Steel Corp., 770 F.Supp. 490, 494 (D.Minn.1989), aff'd, 909 F.2d 511 (8th Cir.1990); Witco Corp. v. Beekhuis, 38 F.3d 682, 690 (3d Cir.1994). A conflict could exist if the Delaware statutes would thwart" }, { "docid": "1880519", "title": "", "text": "battery case. The defendants sold spent batteries to a company that recovered the valuable components from the batteries, and were sued as PRPs when the 'company’s property was found to be contaminated. The court declined to impose an “intent to dispose” requirement, but recognized that several courts imposed “arranger” liability only when a defendant intended to dispose of or treat a hazardous substance in a transaction. It found these courts’ reasoning “ignores the' ‘strict’ liability nature of CERC-LA liability;” “lack of knowledge or intent should not serve as a defense to liability under CERCLA.” Id. at 1139 (citing Amcast Industrial Corp. v. Detrex Corp., 2 F.3d 746, 751 (7th Cir.1993), United States v. Cello-Foil Products, Inc., 1994 Hazardous Waste Litig. Rep. 26287, 26289-91 (W.D.Mich. March 17, 1994), and Edward Hines Lumber Co. v. Vulcan Materials Co., 685 F.Supp. 651, 654-56 (N.D.Ill.1988), aff'd, 861 F.2d 155 (7th Cir.1988)). “[CJourts elsewhere have distinguished between the sale or exchange of a ‘useful’ product versus a ‘waste’ product.’ ” Id. at 1140 (citing AM International v. International Forging Equipment Corp., 982 F.2d 989, 999 (6th Cir.1993), Chesapeake and Potomac Tel. Co. v. Peck Iron & Metal, 814 F.Supp. 1269 (E.D.Va.1992), United States v. Pesses, 794 F.Supp. 161, 156 (W.D.Pa.1992), and Prudential Ins. Co. v. United States Gypsum, 711 F.Supp. 1244, 1254 (D.N.J.1989)). Chatham focused on whether the batteries were useable for the purpose for which they were created. Since the batteries could not supply electric current, defendants were not “dealing in a useful product, but essentially trafficked] in a hazardous substance.” Sellers’ clarification argument implies there will be no change in the case outcomes under Section 127. Cooper II, Pneumo, and Chatham Steel would all come out the same. If no change results, why was the 127 amendment necessary? As Amicus suggests, some case outcomes will change under the new scheme, facilitating Congress’ intent to effect clarity and consistency in recycling decisions. b. The Amicus The Amicus agrees CERCLA’s ambiguous liability scheme has produced different outcomes on the question, whether the sale of recyclable materials is an “arrangement” for disposal. It compares RSR Corp." }, { "docid": "22998079", "title": "", "text": "1993). An exception arises when a limited partner acts like a general partner in controlling the partnership’s business. In those circumstances, the limited partner may lose its limited liability status and be held to account for the partnership’s liability. See, e.g., Ala.Code § 10-9A-42(a); Cal.Corp.Code § 15632; Fla.Stat.Ann. § 620.129(1). The Hutton partners’ liability for the Partnership’s CERCLA obligations therefore depends on whether they crossed this line in controlling the business of Saraland Limited. Neither CERCLA’s text nor its legislative history address whether state or federal law governs when a limited partner may be held liable for the partnership’s debts. As several jurists have noted, Congress passed CERC-LA in great haste and in the process left many holes in its framework for courts to fill in. Smith Land & Improvement Corp. v. Celotex Corp., 851 F.2d 86, 91 (3d Cir.1988), cert. denied, 488 U.S. 1029, 109 S.Ct. 837, 102 L.Ed.2d 969 (1989); Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F.2d 1074, 1080 (1st Cir.1986). One of the more significant gaps in CERCLA’s scheme arises where the right to recovery created by the Act confronts state law governing business entities like corporations and partnerships. Although there is a dearth of authority regarding CERCLA’s interaction with state partnership law, courts have been called upon to resolve issues of CERCLA liability for corporations and their shareholders. For example, courts in CERCLA actions have had to determine when to “pierce the corporate veil” to hold a corporation’s shareholders liable, see United States v. Cordova Chem. Co., 59 F.3d 584, 592 (6th Cir.), reh’g en banc granted and judgment vacated, 67 F.3d 586 (6th Cir.1995); Lansford-Coaldale Joint Water Auth. v. Tonolli Corp., 4 F.3d 1209, 1224-25 (3d Cir.1993), whether a corporation can be held accountable as a “successor” corporation for its predecessor’s CERCLA liability, see Anspec Co. v. Johnson Controls, Inc., 922 F.2d 1240, 1244-47 (6th Cir.1991); Smith Land, 851 F.2d at 90-92, and whether a dissolved corporation is subject to suit under CERCLA, see Levin Metals Corp. v. Parr-Richmond Terminal Co., 817 F.2d 1448, 1450-51 (9th Cir.1987); United States v. Sharon Steel" }, { "docid": "9509096", "title": "", "text": "U.S.C. § 9601(21). Likewise, the fact that the corporation which owned the facility at the time of disposal has been dissolved is not a defense enumerated in Section 9607(b). However, under Michigan law a dissolved corporation may not be sued once it has completely wound up its affairs and distributed its assets. M.C.L.A. § 450.1851(2). The question before the Court is whether the broad liability imposed by CERCLA coupled with the explicit provision that liability attaches “[notwithstanding any other provision or rule of law” permits a plaintiff to maintain a CERCLA lawsuit against a dissolved corporation. The Court has found exactly four federal cases dealing with this issue. First, in Levin Metals Corp. v. Parr-Richmond Co., 817 F.2d 1448 (9th Cir.1987), the court determined that Federal Rule of Civil Procedure 17(b) controls. That Rule provides that “[t]he capacity of a corporation to sue or be sued shall be determined by the law under which it was organized.” Because in that case California law precluded suits against dissolved corporations, the lawsuit was dismissed. Next, the Federal District Court for the District of Utah determined that the Levin Metals result had the effect of thwarting congressional intent. Because CERCLA is to be construed broadly and liberally to effect its purposes and Section 9607(a) specifically supersedes rules of law to the contrary, it was found to preempt state law pertaining to the capacity of dissolved corporations to be sued. United States v. Sharon Steel, 681 F.Supp. 1492, 1495-96 (D.Utah 1987). The court was careful in that case to note, however, that the corporation involved was dead but not buried, i.e., although the corporation was dissolved, its assets had not been fully distributed. Id. at 1498. In United States v. Distler, 741 F.Supp. 643 (W.D.Ky.1990), the court picked up on the distinction in Levin Metals between a dissolved corporation’s capacity to be sued and its liability under CERCLA. The Court followed Sharon Steel and determined that CERCLA supersedes Rule 17(b) and preempts state capacity laws. However, the court concluded that there is nothing in CERCLA to support the proposition that a dissolved corporation may" }, { "docid": "6630436", "title": "", "text": "F.Supp. 1007, 1012-14 (D.N.J.1994); Barton Solvents, Inc. v. Southwest Petro-Chem, Inc., 836 F.Supp. 757, 761 (D.Kan.1993); BASF Corp. v. Central Transp. Inc., 830 F.Supp. 1011 (E.D.Mich.1993); Traverse Bay Area Interned. Sch. Dist. v. Hitco, Inc., 762 F.Supp. 1298, 1301 (W.D.Mich.1991). Two cases have found that a corporation’s status as dead and buried makes no difference to its potential liability under CERCLA. United States v. SCA Services of Indiana, Inc., 837 F.Supp. 946, 953 (N.D.Ind.1993); Allied Corp. v. Acme Solvents Reclaiming, Case No. 86-C-20377, 1990 WL 322940 (N.D.Ill.1990). The court finds persuasive the approach of the majority of the decisions, and holds that a dissolved corporation holding no valuable assets is not a person within the meaning of CERCLA. Assuming that they have been dissolved and have relinquished all their assets, the three defendants named are simply not “corporations” in any meaningful sense. However, the court finds that summary judgment should not be granted at this time because further discovery should be permitted as to the status of the three defendants. Each of the defendants relies heavily on the affidavit testimony of their former presidents, and the record suggests that full discovery upon the issue has not yet been concluded. The issue of whether a dissolved corporation is indeed dead is fact specific and should not be granted until discovery is complete. Chatham Steel, 858 F.Supp. at 1152-53; Barton Solvents, 836 F.Supp. at 757, 761-62; BASF, 830 F.Supp. at 1013. To continue the metaphor, a burial at the present time might prove unpleasantly premature. Accordingly, the court shall withhold summary judgment on this issue for the time being. IT IS ACCORDINGLY ORDERED this 24th day of March, 1995, that the motions to dismiss and for summary judgment of the liaison defendants, as well as the various independent defendants’ motions to join in, are hereby denied, except as to the motions by defendants Jet Star Industries, B & R Oil, and Halverwood Company upon the issue of their status as dead and buried corporations, upon which the court reserves judgment at the present time. The plaintiffs motion for partial summary judgment is" }, { "docid": "21263576", "title": "", "text": "the Court of Chancery. Del.Code Ann. tit. 8, § 278. Delaware’s statute limits capacity to be sued, not liability, and thus does not conflict with CERCLA’s statute of limitations — even if in operation the state law precludes the CERCLA plaintiff from recovering in some circumstances. See Witco, 38 F.3d at 690; Louisiana-Pac. Corp. v. ASARCO, Inc., 5 F.3d 431, 433-34 (9th Cir.1993); Onan, 770 F.Supp. at 494-95; Levin Metals Corp. v. Parr-Richmond Terminal Co., 817 F.2d 1448, 1451 (9th Cir.1987). The State analogizes this case to Bed-ford Affiliates, where we held that CERC-LA preempted state-law claims for restitution and indemnification. 156 F.3d at 427. In that case, however, the plaintiffs’ state-law claims for restitution and indemnification stood in the way of CERCLA’s objective of encouraging settlement, which it achieves by restricting the availability of contribution actions. The restitution and indemnification claims would have given the plaintiffs an alternative to the contribution action withheld by CERCLA, which flies in the face of the federal goal of encouraging settlements. CERCLA’s statute of limitations and Delaware’s corporate wind-up period present no such direct conflict. In sum, the State has not shown such a conflict between Delaware law and the congressional policy manifested in CERC-LA as to lead us to conclude that Congress intended to preempt Delaware’s corporate wind-up period, which protects dissolved corporations’ and their former shareholders’ interests in finality. CERCLA does not suggest that “the entire corpus of state corporation law is to be replaced simply because a plaintiffs cause of action is based upon a federal statute,” Burks v. Lasher, 441 U.S. 471, 478, 99 S.Ct. 1831, 60 L.Ed.2d 404 (1979), or because it would net the government more money, O’Melveny, 512 U.S. at 88, 114 S.Ct. 2048, which is essentially all the State has shown here. That is not sufficient to justify preemption. B. Federal Common Law Having held that the CERCLA statute of limitations does not preempt Delaware law in this instance, we address the State’s argument that we should create a rule of federal common law based on the equitable trust fund doctrine for CERCLA cases. The" }, { "docid": "6630435", "title": "", "text": "Steel Corp., 681 F.Supp. 1492 (D.Utah 1987). In Sharon Steel, the court addressed the status under CERCLA of a dissolved corporation, and concluded that dissolution of a corporation without distribution of the corporation’s assets did not immunize the corporation from CERCLA liability. The court both distinguished and explicitly refused to decide what would happen after distribution of the corporation’s assets: Nor is the court faced with a situation in which the corporation’s assets have been fully distributed and its affairs completely wound up, that is, where the corporation is not only dead but also buried. Here, the funeral is still going on. 681 F.Supp. at 1498. Although Sharon Steel itself did not direct•ly resolve the status of dead and buried corporations, most of the recent decisions have both followed the distinction made in that decision and further concluded that once the dead corporation is in the ground, it is no longer a “person” amenable to suit under CERCLA. Chatham Steel Corp. v. Brown, 858 F.Supp. 1130, 1152 (N.D.Fla.1994); AM Properties Corp. v. GTE Products, 844 F.Supp. 1007, 1012-14 (D.N.J.1994); Barton Solvents, Inc. v. Southwest Petro-Chem, Inc., 836 F.Supp. 757, 761 (D.Kan.1993); BASF Corp. v. Central Transp. Inc., 830 F.Supp. 1011 (E.D.Mich.1993); Traverse Bay Area Interned. Sch. Dist. v. Hitco, Inc., 762 F.Supp. 1298, 1301 (W.D.Mich.1991). Two cases have found that a corporation’s status as dead and buried makes no difference to its potential liability under CERCLA. United States v. SCA Services of Indiana, Inc., 837 F.Supp. 946, 953 (N.D.Ind.1993); Allied Corp. v. Acme Solvents Reclaiming, Case No. 86-C-20377, 1990 WL 322940 (N.D.Ill.1990). The court finds persuasive the approach of the majority of the decisions, and holds that a dissolved corporation holding no valuable assets is not a person within the meaning of CERCLA. Assuming that they have been dissolved and have relinquished all their assets, the three defendants named are simply not “corporations” in any meaningful sense. However, the court finds that summary judgment should not be granted at this time because further discovery should be permitted as to the status of the three defendants. Each of the defendants relies" }, { "docid": "3251631", "title": "", "text": "provided for by section 9607(b). This court agrees with the position of plaintiffs that CERCLA preempts Michigan law. Among courts that have addressed the issue, the clear trend is towards construing CERCLA to supersede Rule 17(b) and to preempt state law. City & County of Denver v. Adolph Coors Co., 813 F.Supp. 1471, 1474 (D.Colo.1992); Traverse Bay Area Intermediate School District v. Hitco, Inc., 762 F.Supp. 1298, 1301 (W.D.Mich.1991); United States v. Distler, 741 F.Supp. 643, 646 (W.D.Ky.1990); United States v. Sharon Steel Corp., 681 F.Supp. 1492, 1498 (D.Utah 1987). Only the Ninth Circuit in Levin Metals Corp. v. Parr-Richmond Terminal Co., 817 F.2d 1448 (9th Cir.1987) found that Rule 17(b) governs the CERCLA liability of dissolved companies. See also Columbia River Service Corp. v. Gilman, 751 F.Supp. 1448, 1453 (W.D.Wash.1990) (following Levin Metals, but sharply criticizing the decision). Congress intended that CERCLA provide for broad liability and that it supersede other laws or rules that would ordinarily limit that liability. Adolph Coors, 813 F.Supp. at 1474; Sharon Steel, 681 F.Supp. at 1498-99. Since environmental cleanup may occur years after the activities that caused the pollution, mere dissolution should not be allowed to block further inquiry into the status of the identifiable resources of the companies responsible for that pollution. Athough CERCLA may preempt Michigan law over the capacity of dissolved corporations to be sued, a dissolved corporation may have ceased to exist such that even CERCLA liability could no longer attach. The Hitco court made this distinction when it denied defendant’s motion to dismiss and allowed plaintiff to conduct discovery in order to determine Whether the dissolved company still controlled resources that could be reached under CERCLA Hitco, 762 F.Supp. at 1301-02. Under Hitco, a dissolved corporation that still controls assets is subject to suit, but if a judgment against that company would be “unenforceable,” then that corporation would no longer qualify as a “person” that could be subject to CERCLA liability. Id. at 1301. The company in Hitco had dissolved over ten years before suit was filed against it. Similarly, Hughes Chemical dissolved in 1982, ten years before" }, { "docid": "21263572", "title": "", "text": "source of recovery in this case amounts to the type of “more money” argument the Supreme Court rejected in O’Melveny, 512 U.S. at 88, 114 S.Ct. 2048, 129 L.Ed.2d 67. It is not the sort of sharp conflict between state law and federal policy that justifies preemption. The district court documented the disagreement among federal courts on this issue. Many of the cases that hold that CERCLA preempts state limits predate Supreme Court precedent strongly admonishing courts against displacing state law lightly, see, e.g., O’Melveny, 512 U.S. at 88, 114 S.Ct. 2048. In light of that precedent and CERCLA’s limits we join those Courts of Appeals that have held that CERCLA does not preempt state statutes that limit a party’s capacity to be sued. See Levin Metals Corp. v. Parr-Richmond Terminal Co., 817 F.2d 1448, 1451 (9th Cir.1987); Onan Corp. v. Indus. Steel Corp., 770 F.Supp. 490, 494 (D.Minn.1989), aff'd, 909 F.2d 511 (8th Cir.1990); Witco Corp. v. Beekhuis, 38 F.3d 682, 690 (3d Cir.1994). A conflict could exist if the Delaware statutes would thwart CERCLA’s goals by encouraging corporations responsible for contamination to dissolve and distribute assets to avoid CERCLA liability, but this simply is not the case. States have incentives not to enact laws that would inspire such a “race to the bottom.” Anspec Co. v. Johnson Controls, Inc., 922 F.2d 1240, 1250 (6th Cir.1991) (Kennedy, J., concurring) (“States have a substantial interest in protecting their citizens and state resources.”). Delaware law protects against this result, requiring dissolving corporations to provide security that will be “reasonably likely to be sufficient” to cover claims that have not been made known to the corporation or that, based on facts known to the corporation, are likely to arise within a period after dissolution. DeLCode Ann. tit. 8, §§ 280(c)(3), 281(b). See also Bradford C. Mank, Should State Corporate Law Define Successor Liability?: The Demise of CERCLA’s Federal Common Law, 68 U. Cin. L.Rev. 1157, 1160 (2000) (corporate successor liability laws of most states “generally prevent corporations from using sham transactions to escape CERCLA liability”). In addition, section 278 provides for extension" }, { "docid": "14603805", "title": "", "text": "§ 23A28.250, is preempted by CERCLA’s three-year statute of limitation, 42 U.S.C. § 9613(g). Applying the Lev-in Metals analysis, we reject this argument. In Levin Metals, Levin brought a CERC-LA action against Parr Industrial, a dis-' solved California corporation, through its shareholders pursuant to California Corporation Code § 2011(a). The district court dismissed the suit because a California corporation could not be sued upon a cause of action arising after .its dissolution. Cal.Corp.Code § 2011(a). Levin appealed contending, among other things, that CERCLA’s statute of limitation preempted California Corporation Code § 2011(a). In rejecting the argument, we stated: Levin’s preemption argument turns on its characterization of the California law here involved as law limiting imposition of liability. A more accurate characterization is that the law determines capacity to be sued. Levin’s interpretation, if followed, would prevent courts from looking to state law to determine whether a dissolved corporation could be sued in any case involving a federal cause, of action. Levin Metals, 817 F.2d at 1451. The present case presents a variation of the same question we considered in Levin Metals. Washington’s statute, Wash.Rev. Code Ann. § 23A.28.250, determines the time within which a dissolved corporation retains its capacity to be sued. ASARCO contends that Levin Metals is distinguishable because there the defendant corporation had dissolved before CERCLA was enacted and there was no possibility its dissolution frustrated federal law. ASARCO argues that if we apply the Levin Metals rule to this case, we will approve of a rule by which a corporate defendant facing potential CERCLA liability can simply dissolve and escape financial responsibility for its CERC-LA cleanup costs. We rejected this argument in Levin Metals, and we do so here. Although state corporate-capacity statutes may operate to preclude CERCLA liability, that risk is inherent in the language of Rule 17(b), which provides “[t]he capacity of a corporation to sue or be sued shall be determined by the law under which it was organized.” Fed.R.Civ.P. 17(b); see also Onan Corp. v. Indus. Steel Corp., 770 F.Supp. 490, 495 (D.Minn.1989) (“[n]ot even the important policy goals underlying CERCLA c[ould] resurrect”" } ]

[ { "docid": "22927416", "title": "", "text": "literal construction of section 3161(c)(2) is consistent with its legislative purpose. For purposes of section 3161(c)(2), Yamanis first appeared through counsel at his arraignment on February 3. Inasmuch as the trial commenced some four months later, we conclude that the statutory requirement was satisfied. Accordingly, we hold that the district court did not err under section 3161(c)(2) in denying Yamanis’ motions for continuance. B. Abuse of Discretion Resulting In Denial of Due Process In Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940), the Supreme Court observed: In the course of trial, after due appointment of competent counsel, many procedural questions necessarily arise which must be decided by the trial judge in light of facts then presented and conditions then existing. Disposition of a request for a continuance is of this nature and is made in the discretion of the trial judge, the exercise of which will ordinarily not be reviewed. Id. at 446, 60 S.Ct. at 322; see Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964). As the predecessor of this court pointed out in United States v. Uptain, 531 F.2d 1281 (5th Cir.1976): A motion for a continuance is addressed to the sound discretion of the trial court, and its ruling will not be disturbed on appeal unless there is a showing that there has been an abuse of that discretion. This issue must be decided on a case by case basis in light of the circumstances presented, particularly the reasons for continuance presented to the trial court at the time the request is denied. Id. at 1285-86 (citations omitted); see United States v. Marquardt, 695 F.2d 1300, 1302 (11th Cir.), cert. denied, 460 U.S. 1093, 103 S.Ct. 1793, 76 L.Ed.2d 360 (1983); United States v. Jimenez-Diaz, 659 F.2d 562, 567 (5th Cir. Unit B 1981), cert. denied, 456 U.S. 907, 102 S.Ct. 1754, 72 L.Ed.2d 164 (1982). The reasons for a continuance asserted below generally relate to the adequacy of the time available for preparation. In support of the May 26th motion, defense counsel noted that" } ]

[ { "docid": "909852", "title": "", "text": "there is a showing that there has been an abuse of that discretion. United States v. Uptain, 531 F.2d 1281 (5th Cir. 1976); United States v. Gidley, 527 F.2d 1345 (5th Cir. 1976), cert. denied, 429 U.S. 841, 97 S.Ct. 116, 50 L.Ed.2d 110 (1977). When a denial of a continuance forms a basis of a petition for a writ of habeas corpus, not only must there have been an abuse of discretion but it must have been so arbitrary and fundamentally unfair that it violates constitutional principles of due process. See Gandy v. Alabama, 569 F.2d 1318, 1323 (5th Cir. 1978); Shirley v. North Carolina, 528 F.2d 819, 822 (4th Cir. 1975). The Supreme Court addressed this subject in Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964): The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. (Citations omitted.) When a motion for a continuance for the purpose of securing defense witnesses is denied, our cáses have identified the following factors in considering whether denial of the motion was an abuse of the trial court’s discretion: the diligence of the defense in interviewing witnesses and procuring their presence, the probability, of procuring their testimony within a reasonable time, the specificity with which the defense is able to describe their expected knowledge or testimony, the degree to which such testimony is expected to be favorable to the accused, and the unique or cumulative nature" }, { "docid": "7196104", "title": "", "text": "was not ready to proceed on the tax evasion charges, the court had an obligation to consider the possible prejudice from the evidence on the conspiracy count being presented in a trial on the tax evasion counts. The court should have considered the complexity of the charges and the possible “spillover” effect from trying the different types of offenses in a joint trial. If the court was concerned with the possibility of violations of the Speedy Trial Act, the court could have easily proceeded to trial on the conspiracy charge immediately while deferring trial on the tax evasion counts until counsel was given a reasonable amount of time for preparation. Alternatively, the court could have granted the motion for a continuance and provided defense counsel with time to prepare a defense on the tax evasion charges. “Although rulings on motions for continuance are traditionally best left to the trial court’s discretion, a judge is not imbued with the power to abrogate a criminal defendant’s constitutional rights.” United States v. King, 664 F.2d 1171, 1173 (10th Cir.1981). See also Linton v. Perini, 656 F.2d 207, 211 (6th Cir.1981), cert. denied, 454 U.S. 1162, 102 S.Ct. 1036, 71 L.Ed.2d 318 (1982). In addressing this matter, the Supreme Court has stated: The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence .... Contrariwise, a myopic insistence upon expeditiousness in the fact of a justifiable request for delay can render the right to defend with counsel an empty formality .... There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849-850, 11 L.Ed.2d 921 (1964). Similarly, there are no mechanical tests for determining the amount of time required" }, { "docid": "22173661", "title": "", "text": "except when less notice was requested by the alien, or was necessary for purposes of security. 8 C.F.R. § 242.-Kb). Section 242.13 of 8 C.F.R. states that a continuance to permit the petitioner to obtain counsel “shall not be granted more than once unless sufficient cause for the granting of more time is shown.” Applications for asylum, 8 U.S.C, § 1158(a), and for mandatory withholding of deportation, 8 U.S.C. § 1253(h), are considered and decided within the deportation hearing when filed after that hearing has begun. 8 C.F.R. §§ 208.3(b) and 208.10. Statutory and regulatory provisions applicable to deportation hearings are thus applicable to the asylum and withholding of deportation phases of such hearings. It is clear that the decision to grant or deny continuances is in the sound discretion of the trial judge and will not be overturned except on a showing of clear abuse. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849-850, 11 L.Ed.2d 921 (1964); United States v. Clevenger, 733 F.2d 1356, 1359 (9th Cir.1984); United States v. Ortiz, 603 F.2d 76, 78 (9th Cir.1979) cert. denied 444 U.S. 1020, 100 S.Ct. 678, 62 L.Ed.2d 652 (1980). Experience tells us that in most situations we should defer to the trial judge’s decision in granting or denying the continuance. But the rule is not without limits, as noted in Ungar v. Sarafite, 376 U.S. at 589, 84 S.Ct. at 849-850: ... a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality____ There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. (Citations omitted.) We have little difficulty in finding that the immigration judge’s grant of two continuances, which amounted to little more than two working days’ time, was an abuse of discretion. The petitioner was in custody, spoke only Spanish, had" }, { "docid": "22760836", "title": "", "text": "Frederick’s office in Georgia. The court denied the renewed motion, and the case proceeded to trial. Following direct examination of the Government’s third witness, Detective Capote, Casado’s counsel stated that he was unprepared to cross-examine, and again requested a continuance or recess. The court denied the request. Both Williams and Casado challenge the district court’s denial of their various continuance motions. We review a district court’s denial of a trial continuance for abuse of discretion. Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1340 (11th Cir.2003). The Sixth Amendment right to counsel guarantees a defendant “both a fair opportunity to be represented by counsel of his own choice and a sufficient time within which to prepare a defense.” Gandy v. Alabama, 569 F.2d 1318, 1321 (5th Cir.1978). While the denial of a continuance request can in some cases amount to a violation of this due process right to counsel, id. at 1322, the right to counsel of choice is not as absolute as the right to the assistance of counsel. Id. at 1323 (citing, inter alia, United States v. Gray, 565 F.2d 881, 887 (5th Cir.1978)). As such, the Supreme Court has made it clear that not every denial of a request for a continuance is a denial of due process: The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. Ungar v. Sarafite, 376 U.S. 575, 589-91, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964). The proper exercise" }, { "docid": "9905481", "title": "", "text": "Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1944); United States v. Uptain, 531 F.2d 1281 (5 Cir. 1976); Jackson v. United States, 330 F.2d 445 (5 Cir. 1964), cert. denied 379 U.S. 821, 85 S.Ct. 42,13 L.Ed.2d 32 (1964); United States v. Sahley, 526 F.2d 913 (5 Cir. 1976). Furthermore, when such an abuse has been alleged, it must be decided on a case by case basis. As the Supreme Court held in Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964): “There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. Nilva v. United States, 352 U.S. 385, 77 S.Ct. 431, 1 L.Ed.2d 415; Torres v. United States, 270 F.2d 252 (CA 9th Cir.); cf. United States v. Arlen, 252 F.2d 491 (CA 2d Cir.). (376 U.S. 589-90, 84 S.Ct. at 850).” (Emphasis supplied). This court, in United States v. Uptain, supra, stated that a “particularly common claim is that a continuance was necessary to interview and subpoena potential witnesses,” and listed the criteria the court has specifically considered with regard to such cases as follows: “ . . [T]he diligence of the defense in interviewing witnesses and procuring their presence, the probability of procuring their testimony within a reasonable time, the specificity with which the defense is able to describe their expected knowledge or testimony, the degree to which such testimony is expected to be favorable to the accused, and the unique or cumulative nature of the testimony. A general rule recently has emerged: ‘A movant must show that due diligence has been exercised to obtain the attendance of the witness, that substantial favorable testimony would be tendered by the witness, that the witness is available and willing to testify, and that the denial of a continuance would materially prejudice the defendant.’ United States v. Miller, 513 F.2d 791, 793 (5 Cir." }, { "docid": "7196114", "title": "", "text": "L.Ed.2d 318 (1982), quoting United States v. Burton, 584 F.2d 485, 490 (CA D.C.1978), cert. denied, 439 U.S. 1069, 99 S.Ct. 837, 59 L.Ed.2d 34 (1979). See also United States v. Uptain, 531 F.2d 1281, 1286 n. 5 (5th Cir.1976). Second, there was nothing inherently prejudicial in the granting of a limited (one week that turned into two) continuance. United States v. Knight, 443 F.2d 174, 178 (6th Cir.1971). And there was no showing of actual prejudice. Id. 177. To elaborate we first note a statement by the Court in United States v. Sahley, 526 F.2d 913, 917 (5th Cir.1976): “[understanding of this issue [request for a continuance] requires us to set the circumstances in per spective.” Also it is well to keep in mind what the Supreme Court said in Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 850, 11 L.Ed.2d 921 (1964) — “[t]here are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the Trial Judge at the time the request is denied.” The circumstances leading up to the limited denial of the third request for continuance are reflected in the docket sheets (Joint Appendix, 1-9). These show the indictment in this case was filed August 28, 1981. Defendant first appeared with counsel on September 1,1981 (Joint Appendix, p. 3). It is not clear who that counsel was, but the next entry on the docket shows that Attorney Neil H. Fink was added to the case that same day. Of course the defendant entered a plea of not guilty when arraigned September 9, 1981 (Id., p. 3). On October 5, 1981, a trial date was set for October 19, 1981. As noted in the government’s brief, (p. 42) due to Judge Harvey’s illness, the case was transferred to Judge Guy November 17, 1981. Earlier on October 15,1981, a motion to reset the trial date had been granted (Id., p. 4) and the trial was reset from October" }, { "docid": "9711286", "title": "", "text": "expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.” Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964). [A] scheduled trial date should never become such an overarching end that it results in the erosion of the defendant’s right to a fair trial. If forcing a defendant to an early trial date substantially impairs his ability to effectively present evidence to rebut the prosecution’s case or to establish defenses, then pursuit of the goal of expeditiousness is far more detrimental to our common purposes in the criminal justice system than the delay of a few days or weeks that may be sought. United States v. Uptain, 531 F.2d 1281, 1291 (5th Cir.1976). A trial court should consider several relevant factors when assessing a continuance motion based on claims of inadequate preparation time: the quantum of time available for preparation, the likelihood of prejudice from denial, the accused’s role in shortening the effective preparation time, the degree of complexity of the case, and the availability of discovery from the prosecution- any pre-appointment or pre-retention experience of the attorney with the accused or the alleged crime, and any representation of the defendant by other attorneys that accrues to his benefit. Id. at 1286-87 (footnotes omitted); see also United States v. Golub, 638 F.2d 185, 189 (10th Cir.1980). The two relevant Supreme Court cases in this area are Ungar v. Sarafite, quoted above, and Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983). The facts in Ungar dealt with adequate preparation time for a contempt hearing based on the defendant’s outburst while testifying as a witness in a case. The Court held that “[t]he five days’ notice given petitioner was not a constitutionally inadequate time to hire counsel and prepare a defense to a case in which the evidence was fresh, the witnesses and the evidence readily available, the issues limited and clear-cut and the charge revolving about one statement made by Ungar during a recently completed trial.” Ungar, 376 U.S." }, { "docid": "3539585", "title": "", "text": "court granted a continuance to move the trial from August to September 1985. XIII J.A. at 5951 (Pretrial Tr. at 15). At this point, the trial judge stated that “[t]here will be no more continuances.” XIII J.A. at 5952 (Pretrial Tr. at 16). Nonetheless, Broom’s counsel sought another continuance on September 5,1985, which the trial court denied. XVIII J.A. at 8200-01 (Evidentiary Hr’g Tr. at 75-76)- (Brusnahan Test.). The Supreme Court addressed the issue of continuances in Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964), which states: The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. (internal citations omitted). We have held that “[t]he denial of a defendant’s motion for continuance ‘amounts to a constitutional violation only if there is an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay.’ ” United States v. King, 127 F.3d 483, 486-87 (6th Cir.1997) (quoting United States v. Gallo, 763 F.2d 1504, 1523 (6th Cir.1985) (internal quotation marks omitted)), cert. denied, 528 U.S. 1055, 120 S.Ct. 601, 145 L.Ed.2d 499 (1999). “To demonstrate reversible error, the defendant must show that the denial resulted in actual prejudice to his defense.” Id. at 487 (quot ing Gallo, 763 F.2d at 1523) (internal quotation marks omitted). In requesting the continuance, Broom’s attorneys informed the state trial court that they “had difficulty in obtaining records and other information, which is necessary for a mitigation hearing,”" }, { "docid": "1845755", "title": "", "text": "the appellate division’s denial of Hirsch’s voucher. See Hirsch Decl. ¶ 6. Childs argues that habeas petitioners who are represented by the Legal Aid Society (“Legal Aid”) receive fully compensated representation in federal habeas proceedings pursuant to a contract between Legal Aid and the City of New York, whereas similarly situated petitioners represented by 18-B attorneys do not receive state-funded representation. DISCUSSION A. DENIAL OF CONTINUANCE AND DISMISSAL OF COUNSEL In general, broad discretion is granted to a trial court’s decision to grant or deny a continuance. See Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964). When a denial of a continuance forms the basis for a habeas claim, the petitioner must show not only that the trial court abused its discretion, but also that the denial was so arbitrary and fundamentally unfair that it violated constitutional principles of due process. See Ungar at 589, 84 S.Ct. 841; United States v. Ellenbogen, 365 F.2d 982, 986 (2nd Cir.1966); Hicks v. Wainwright, 633 F.2d 1146, 1149 (5th Cir.1981); Shirley v. NoHh Carolina, 528 F.2d 819, 822 (4th Cir.1975). The Supreme Court has cautioned, however, that “a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.” Ungar at 589, 84 S.Ct. 841. Where a continuance is sought to retain or replace counsel, the right to choose counsel must be carefully balanced against the public’s interest in the orderly administration of justice. See United States v. Burton, 584 F.2d 485, 490 (D.C.Cir.1978). While indigent defendants have no right to choose their appointed lawyer, see United States v. Mills, 895 F.2d 897, 904 (2d Cir.1990), once counsel is assigned, the Sixth Amendment right to counsel of choice attaches and counsel may not be removed arbitrarily. See Fuller v. Diesslin, 868 F.2d 604, 607 (3d Cir.1989). The Supreme Court’s holding in Morris v. Slappy, 461 U.S. 1, 5, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983) is instructive in guiding an assessment of arbitrariness in the context of a request for a delay of trial." }, { "docid": "18560642", "title": "", "text": "denial of due process. See Hicks v. Wainwright, 633 F.2d 1146, 1148-49 (5th Cir.1981). The Court has recognized, in the context of a defendant’s assertion of his sixth amendment right to counsel, that the constitutionality of a trial judge’s refusal to grant a continuance depends on the circumstances of each particular case, evaluated in the light of the judge’s traditional discretion to grant or deny such motions. See Ungar v. Sa-rafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964); see also Hicks, 633 F.2d at 1148-49 (applying Ungar to the right to compulsory process). The Fifth Circuit has enumerated a list of factors reviewing courts should consider in determining whether an accused was deprived of his rights to compulsory process and due process by a denial of a motion for continuance: the diligence of the defense in interviewing witnesses and procuring their presence, the probability of procuring their testimony within a reasonable time, the specificity with which the defense is able to describe their expected knowledge or testimony, the degree to which such testimony is expected to be favorable to the accused, and the unique or cumulative nature of the testimony. Hicks, 633 F.2d at 1149 (quoting United States v. Uptain, 531 F.2d 1281, 1287 (5th Cir.1976) (footnotes omitted)); see also Dickerson v. Alabama, 667 F.2d 1364,1370 (11th Cir.1982). The Fifth Circuit in Hicks also stated, “When a denial of a continuance forms a basis of a petition for a writ of habeas corpus, not only must there have been an abuse of discretion but it must have been so arbitrary and fundamentally unfair that it violates constitutional principles of due process.” 633 F.2d at 1148. There must also be some showing that granting the continuance would have furthered the court’s attempt to secure a just determination of the cause. See United States v. Fearwell, 595 F.2d 771, 780 (D.C. Cir.1978). Turning to the factors delineated by the Fifth Circuit, we note first that appellee does not dispute that appellant was diligent in interviewing Bridewell and procuring his presence. According to the uncontradicted affidavit of appellant’s" }, { "docid": "9905480", "title": "", "text": "and conclusion after an evidentiary hearing; “The record as a whole shows that the petitioner was not denied the effective assistance of his counsel either from the denial of the motion for continuance by the trial judge or from the representation he received from his attorneys at the trial.” As to the denial of the motion for continuance, the facts show that it was a general motion with no mention of the existence of any specific evidence which was known to exist, and which counsel might develop if given more time, nor the name of any material witness who might testify for the petitioner if time was allowed for counsel to locate him and procure his testimony. Neither did the motion allege what prejudice, if any, would likely result to the petitioner if the motion was denied. A motion for a continuance is addressed to the sound discretion of the trial court and the exercise of that discretion will not be deemed improper without a clear showing that such discretion has been abused. Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1944); United States v. Uptain, 531 F.2d 1281 (5 Cir. 1976); Jackson v. United States, 330 F.2d 445 (5 Cir. 1964), cert. denied 379 U.S. 821, 85 S.Ct. 42,13 L.Ed.2d 32 (1964); United States v. Sahley, 526 F.2d 913 (5 Cir. 1976). Furthermore, when such an abuse has been alleged, it must be decided on a case by case basis. As the Supreme Court held in Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964): “There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. Nilva v. United States, 352 U.S. 385, 77 S.Ct. 431, 1 L.Ed.2d 415; Torres v. United States, 270 F.2d 252 (CA 9th Cir.); cf. United States v. Arlen, 252 F.2d 491 (CA 2d Cir.). (376 U.S. 589-90," }, { "docid": "12632827", "title": "", "text": "96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). In this case, the state judge deprived Kirkpatrick of the testimony of his foster parents, the only persons competent to testify about his deprived childhood and his human qualities while he was a youth. Theirs was “the only testimony potentially effective to his [presentation of mitigating evidence] ” to the jury. See Hicks v. Wainwright, 633 F.2d 1146, 1147, 1150 (5th Cir.1981) (abuse of discretion not to grant continuance where witness was available within six hours and was defendant’s only expert); United States v. Fessel, 531 F.2d 1275, 1280 (5th Cir.1976) (district court reversed for failure to permit continuance to secure testimony of out-of-state psychiatrist whose, written reports provided defendant’s only hope of a favorable verdict); Dickerson v. Alabama, 667 F.2d 1364, 1370 (11th Cir.) (often cited as a Fifth Circuit case, e.g., United States v. Khan, 728 F.2d 676, 678 (5th Cir.1984)) (testimony of out-of-town policeman witness would have “lent a new aura of credibility to [the defendant’s] alibi defense”) cert. denied 459 U.S. 878, 103 S.Ct. 173, 74 L.Ed.2d 142 (1982). His decision therefore constituted an abuse of discretion. Kirkpatrick had been in jail awaiting trial for nine months before his trial began. Ford moved to continue at 7:45 p.m. on the third day of trial, and after the jury had found Kirkpatrick guilty. There is no explanation of why, in such circumstances, the state judge found it so urgently necessary to begin the sentencing phase of the trial .immediately rather than granting the overnight recess. On the other hand, the trial of Kirkpatrick’s co-defendant, set to begin on the same day as Kirkpatrick’s was continued for two months. To paraphrase the' Supreme Court, such “myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend [by presenting witnesses] an empty formality.” Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964). Moreover, an unreasonable refusal is certain to provide a defendant sentenced to death with a claim of constitutional magnitude that he can assert in any past" }, { "docid": "7196113", "title": "", "text": "the inclusion of the term “of the same or similar character” in the former. As the court in United States v. Kopituk, 690 F.2d 1289, 1313 n. 21 (11th Cir.1982), cert. denied, - U.S. -, 103 S.Ct. 2090, 77 L.Ed.2d 300 (1983), correctly observed: Of course, adherence to a subsection (b) rather than a subsection (a) analysis in Diaz-Munoz would in no way have affected the result in that case, since the critical term distinguishing the two subsections (“of the same or similar character”) was not at issue therein. PORTER, Senior District Judge, dissenting. I respectfully dissent. I would not reverse on the ground that it was error to partially deny defendant’s third motion for continuance, the subsequent motion for severance or on any of the other grounds asserted for reversal. Denial of Motion for Severance and Motion for Continuance First, defendant “ ‘contributed to the circumstance which [gave] rise to the request for a continuance ...’” Linton v. Perini, 656 F.2d 207, 210 (6th Cir.1981), cert. denied, 454 U.S. 1162, 102 S.Ct. 1036, 71 L.Ed.2d 318 (1982), quoting United States v. Burton, 584 F.2d 485, 490 (CA D.C.1978), cert. denied, 439 U.S. 1069, 99 S.Ct. 837, 59 L.Ed.2d 34 (1979). See also United States v. Uptain, 531 F.2d 1281, 1286 n. 5 (5th Cir.1976). Second, there was nothing inherently prejudicial in the granting of a limited (one week that turned into two) continuance. United States v. Knight, 443 F.2d 174, 178 (6th Cir.1971). And there was no showing of actual prejudice. Id. 177. To elaborate we first note a statement by the Court in United States v. Sahley, 526 F.2d 913, 917 (5th Cir.1976): “[understanding of this issue [request for a continuance] requires us to set the circumstances in per spective.” Also it is well to keep in mind what the Supreme Court said in Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 850, 11 L.Ed.2d 921 (1964) — “[t]here are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the" }, { "docid": "2006183", "title": "", "text": "at the trial and principal attorney in this appeal. II. The Sixth Amendment right to counsel includes not only an indigent’s right to have the government appoint an attorney to represent him, but also the right of any accused, if he can provide counsel for himself by his own resources or through the aid of his family or friends, to be represented by an attorney of his own choosing. Included also is the right of any defendant to a reasonable opportunity to obtain counsel of his own choosing. Crooker v. California, 357 U.S. 433, 439, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (1958); Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932); United States v. Pigford, 461 F.2d 648, 649 (4 Cir. 1972). But the court also has the right to control its own docket to require that eases proceed in an orderly and timely fashion, and to that end to deny motions for continuances. As was said in Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed. 2d 921 (1964), where the right to counsel was asserted to conflict with the court’s right to proceed with a trial: The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality . . . . There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. Id., p. 589, 84 S.Ct. p. 849. III. Here, we find no abuse of discretion, even though we conclude that the outermost reach of discretion was exercised. Retained counsel’s assigned reasons for" }, { "docid": "7196105", "title": "", "text": "Cir.1981). See also Linton v. Perini, 656 F.2d 207, 211 (6th Cir.1981), cert. denied, 454 U.S. 1162, 102 S.Ct. 1036, 71 L.Ed.2d 318 (1982). In addressing this matter, the Supreme Court has stated: The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence .... Contrariwise, a myopic insistence upon expeditiousness in the fact of a justifiable request for delay can render the right to defend with counsel an empty formality .... There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849-850, 11 L.Ed.2d 921 (1964). Similarly, there are no mechanical tests for determining the amount of time required for adequate preparation for trial in a criminal case. Linton v. Perini, 656 F.2d at 209; United States v. Faulkner, 538 F.2d 724, 729 (6th Cir.1976), cert. denied, 429 U.S. 1023, 97 S.Ct. 640, 50 L.Ed.2d 624 (1976). Therefore, “we look for a showing from the defendant of prejudice, i.e., a showing that the continuance would have made relevant witnesses available, or would have added something to the defense.” Faulkner, 538 F.2d at 729-30. Here, we are left with the firm conviction that a continuance would not have been burdensome on the government or the trial court while it would have provided the defendant with an opportunity to prepare an adequate defense against the government’s entire case against him. The prejudice suffered by the defendant because of the trial court’s denial of a continuance became the type of prejudice Rule 14 was designed to alleviate. The defendant’s attorney was unprepared to defend on the tax evasion counts because of their complexity. However, the joinder of the tax evasion counts with the drug count compounded the" }, { "docid": "1684422", "title": "", "text": "granted; 4) the Court set, in advance, the month of September for the trial, so that all attorneys, witnesses, and the Court could arrange to be present; 5) the defendant had knowledge of his attorney’s conflict near the time of arraignment; 6) the defendant and his attorney requested in bad faith, for purposes of delay, the continuance; 7) the defendant had one month opportunity to retain other counsel; 8) the defendant at- ' tempted to manipulate the Court’s scheduling by retaining an attorney whom he knew had a conflict. • In general, those factors require the proper exercise of this Court’s discretion in the delicate balancing of the defendant’s due process right to adequate representation by counsel of his own choice and the general interest in the prompt and efficient administration of justice. The Court recognizes that the Supreme Court has made clear the fact that not every denial of a request for continuance is a denial of due process. In Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964), the Court stated: The matter of continuance is traditionally within the discretion of the trial judge, and it is not every deniaLof a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons présented to the trial judge at the time the request is denied. Id. at 589, 84 S.Ct. at 849-50. In evaluating the identified factors and reconciliation of the competing values, this Court was guided by prior controlling precedent. The case this Court examined was United States v. Barrentine, 591 F.2d 1069 (5th Cir.1979), rehearing denied, 599 F.2d 1054 (5th Cir.1979), cert. denied, 444 U.S. 990, 100 S.Ct." }, { "docid": "12632812", "title": "", "text": "present these witnesses as mitigating evidence during the sentencing phase of the trial, and that had the trial court granted an overnight recess, the missing witnesses — his foster parents, two children of his common-law wife, and his brother — would have attended the trial and testified on his behalf. A motion for continuance is addressed to the sound discretion of the trial court and is not to be disturbed on a petition for habeas corpus unless there is a showing that there has been an abuse of discretion and that the denial was so fundamentally unfair that it violates constitutional principles of due process. Skillern v. Estelle, 720 F.2d 839, 850 (5th Cir.1983); Hicks v. Wainwright, 633 F.2d 1146, 1147, 1148 (5th Cir.1981). The factors to be considered in determining whether a denial of a motion for a continuance made for the purpose of procuring defense witnesses was an abuse of a trial court’s discretion are: [T]he diligence of the defense in interviewing witnesses and procuring their presence, the probability of procuring their testimony within a reasonable time, the specificity with which the defense is able to describe their expected knowledge or testimony, the degree to which such testimony is expected to be favorable to the accused, and the unique or cumulative nature of the testimony. Hicks v. Wainwright, 633 F.2d at 1149 (quoting United States v. Uptain, 531 F.2d 1281, 1287 (5th Cir.1976)) (footnotes omitted). However, “[t]here are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” Skillern v. Estelle, 720 F.2d at 850 (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 901 (1964)) (emphasis omitted). At trial, Ford explained the absence of the witnesses on the ground that neither they nor Kirkpatrick could afford motel accommodations or food or travel expenses for them for the entire length of trial, and that he and" }, { "docid": "3891700", "title": "", "text": "that the government’s revelation that it had obtained checks likely to be introduced as evidence necessitated a continuance for Griffin to analyze the checks. Granting or denying a continuance is a matter within the discretion of the district court. “Broad discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary ‘insistence upon expeditiousness in the face of a justifiable request for delay’ violates the right to the assistance of counsel.” Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 1616-17, 75 L.Ed.2d 610 (1982), citing Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849-50, 11 L.Ed.2d 921 (1964). We also look to the standard announced in Ungar to determine whether the district court has abused its discretion in denying a continuance. “There are no mechanical tests for deciding when a denial for continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” United States v. Wirsing, 719 F.2d 859, 866 (6th Cir.1983), quoting Ungar, 376 U.S. at 589, 84 S.Ct. at 850. “[W]e look for a showing from the defendant of prejudice, i.e., a showing that the continuance would have made relevant witnesses available, or would have added something to the defense.” Wirsing, 719 F.2d at 866, quoting United States v. Faulkner, 538 F.2d 724, 729-30 (6th Cir.1976). The superseding indictment in this case dropped one count charging misapplication. It also delineated defendants’ interests in Quadel Corporation and added Norman Watson’s name to the counts alleging violations of 18 U.S.C. §§ 215 and 2. The checks complained of by Griffin are checks from Quadel to Frost, Griffin, OEA and other partnerships in which defendants held interests. Defendants have failed to show the required prejudice. Their primary concern, the “virtual waste” of time and resources by counsel to prepare a defense against the dropped charge, is not sufficient to show a violation of due process. The district court did not abuse its discretion by denying a" }, { "docid": "3806876", "title": "", "text": "the defendant has had a reasonable opportunity to obtain representation.” The Supreme Court in Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964), in holding that five days within which to retain counsel was not constitutionally inadequate, again affirmed the rule that the matter of continuance is traditionally within the discretion of the trial judge (Id. at 589-590, 84 S.Ct. at 849-850): “The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. Avery v. [State of] Alabama, 308 U.S. 444 [60 S.Ct. 321, 84 L.Ed. 377]. Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. Chandler v. Fretag, 348 U.S. 3 [75 S.Ct. 1, 99 L.Ed. 4]. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. Nilva v. United States, 352 U.S. 385, [77 S.Ct. 431, 1 L.Ed.2d 415]; Torres v. United States, 270 F.2d 252 (C.A. 9th Cir.); cf. United States v. Arlen, 252 F.2d 491 (C.A. 2d Cir.). * X- X- * * * “We cannot say that this decision, in light of all the circumstances, denied petitioner due process. The five days’ notice given petitioner was not a constitutionally inadequate time to hire counsel and pre pare a defense to a case in which the evidence was fresh, the witnesses and the evidence readily available, the issues limited and clear-cut and the charge revolving about one statement made by Ungar during a recently completed trial. Furthermore, the motion for continuance was not made until the day of the scheduled hearing and Ungar himself was a lawyer familiar with the court’s practice of" }, { "docid": "22760837", "title": "", "text": "1323 (citing, inter alia, United States v. Gray, 565 F.2d 881, 887 (5th Cir.1978)). As such, the Supreme Court has made it clear that not every denial of a request for a continuance is a denial of due process: The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. Ungar v. Sarafite, 376 U.S. 575, 589-91, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964). The proper exercise of the trial court’s discretion thus requires a delicate balance between the defendant’s right to adequate representation by counsel of his choice and the general interest in the prompt and efficient administration of justice. Gandy, 569 F.2d at 1323 (citing United States v. Uptain, 531 F.2d 1281, 1291 (5th Cir.1976)). Defendants are only guaranteed a fair or reasonable opportunity to select the attorney of their choice. United States v. Bowe, 221 F.3d 1183, 1190 (11th Cir.2000) (citing Gandy, 569 F.2d at 1323-24). When deciding whether a denial of a continuance impinged on the defendant’s “fair and reasonable opportunity” to choose counsel, reviewing courts should consider a number of factors, including: (1) the length of the delay; (2) whether the counsel who becomes unavailable for trial has associates prepared to try the case; (3) whether other continuances have been requested and granted; (4) the inconvenience to all involved in the trial; (5) whether the requested continuance is for a legitimate reason; and (6) any unique factors. Bowe, 221 F.3d at 1190. It is of no relevance" } ]

[ { "docid": "12801689", "title": "", "text": "arising from the same incident or event. See Ruff v. Ekerds Drugs, Inc., 265 S.C. 563, 220 S.E.2d 649, 650-51 (1975) (favorable termination established where malicious prosecution plaintiff previously arrested for assault and disorderly conduct “arising] out of the same set of circumstances” was convicted of assault and acquitted of disorderly conduct); Cuth-rell v. Zayre of Va., Inc., 214 Va. 427, 201 S.E.2d 779, 780 (1974) (favorable termination established where malicious prosecution plaintiff, previously arrested for disorderly conduct after dispute over arrest for petit larceny, was convicted of disorderly conduct and acquitted of petit larceny). Here, Janetka was charged with two distinct offenses involving distinct allegations. The disorderly conduct charge involved Janetka’s actions directed at the unidentified hispanic man; the resisting arrest charge involved his actions directed at the officers’ attempts to arrest him. The elements of each charge are different; neither charge is a lesser included offense of the other. To hold that an acquittal does not constitute a favorable termination would be particularly inappropriate in this case, where the charge for which Janetka was acquitted was more serious than the one for which he was convicted. Resisting arrest is a “misdemeanor,” see N.Y.Penal Law § 205.30 (McKinney 1988), punishable by a maximum prison sentence of one year, see N.Y. Penal Law § 10.00(4) (McKinney 1987). Disorderly conduct is a “violation,” see N.Y.Penal Law § 240.20 (McKinney 1989), punishable by a maximum prison sentence of 15 days, see N.Y.Penal Law § 10.00(3). Allowing police officers to add unwarranted misdemeanor charges to valid violation charges may force an accused to go to trial on the misdemeanor when he otherwise would plead to the violation. If the disposi-tive factor is whether, as the district court held, the charge resulting in acquittal “arose out of events that occurred on the same occasion” as a charge resulting in conviction, then police officers could add unsupported serious charges to legitimate minor charges with impunity. Accordingly, we reverse the dismissal of the malicious prosecution claim and remand for further proceedings as to that claim in the district court. Janetka’s second assignment of error is that" } ]

[ { "docid": "6620489", "title": "", "text": "MEMORANDUM AND ORDER WEXLER, District Judge. Plaintiff Andrew F. Janetka, Jr. (“Plaintiff” or “Janetka”) brings this civil rights action pursuant to 42 U.S.C. § 1983 (“Section 1983”) against the County of Suffolk and one of its police officers. Among the claims set forth in Janetka’s complaint are civil rights and state law claims based upon the alleged malicious prosecution of Janet-ka in a prior criminal proceeding. Presently before the Court is the question of the viability of those claims. For the reasons set forth below, the Court dismisses the claims at issue and holds, accordingly, that such claims may not be presented to the jury. I. Background Janetka’s present complaint stems from his arrest after an alleged altercation with Suffolk County police officers at a local convenience store. The facts developed thus far at trial reveal that after his confrontation with the officers, Janetka was placed in custody and charged with the offenses of: (1) resisting arrest, in violation of section 205.30 of New York’s Penal Law (the “Penal Law”) and (2) disorderly conduct in violation of section 240.20 of the Penal Law. After a single trial held on both charges Jaketka was acquitted on the resisting arrest charge and was convicted on the disorderly conduct charge. According to Janetka, this termination of his criminal charges entitles him to go forward with his malicious prosecution claims. After outlining the elements of a cause of action based on malicious prosecution, the Court will consider whether Janetka may proceed under that theory. II. Discussion A. General Principles At the outset, the Court notes that the elements of a Section 1983 civil rights claim based upon malicious prosecution are identical to the elements required to prove such a claim under New York State law. Conway v. Village of Mount Kisco, 750 F.2d 205, 214 (2d Cir.1984); see Raysor v. Port Authority, 768 F.2d 34, 39-40 (2d Cir.1985). Under New York law, a plaintiff seeking to recover on a malicious prosecution theory must prove the following four elements: (1) that the defendant either commenced or continued a criminal proceeding against plaintiff; (2) that the" }, { "docid": "1476793", "title": "", "text": "law officers be suppressed. BACKGROUND AND FACTS Defendant Tarrick Person (“Person” or “defendant”) brought this motion on August 1, 2000 pursuant to Rules 12(b)(3) and 41 of the Federal Rules of Criminal Procedure, alleging that the stop and search of his person were unreasonable and violated his Fourth Amendment rights. Defendant seeks to suppress the seized handgun found in his possession by officers of the New York City Police Department (“NYPD”) and any post arrest statements pursuant to the “fruit of the poisonous tree” doctrine. Defendant was arrested on May 19, 2000 by NYPD officers and charged by the Kings County District Attorney with Criminal Possession of a Weapon in the Third Degree, in violation of New York State Penal Law § 265.02(4). (Defendant Tar-rick Person’s Memorandum of Law in Support of His Pre-Trial Motions (“Dft’s Mem.”) at 2). On June 12, 2000 Person was arrested pursuant to 18 U.S.C. § 922(g)(1), and charged with being a felon in possession of a firearm that had been shipped and transported in interstate or foreign commerce. On July 11, 2000 Person was indicted by a Grand Jury in the Eastern District of New York for this same charge. At a status conference held on August 1, 2000, Judge Gershon ordered that defense motions be filed by September 29, 2000, and directed me to set any further schedule. I held a suppression hearing on November 8, 2000, and following the hearing I directed the parties to submit supplemental briefs by November 15, 2000. The government requested an extension of time and submitted its Memorandum of Law in Opposition to Defendant Person’s Motion to Suppress (“Govt’s Mem.”) on November 20, 2000. Defendant submitted his reply letter on November 29, 2000. Defendant was arrested in Billy’s Restaurant on Lewis Avenue in Brooklyn, as a result of an anonymous tip to a 911 operator. On May 19, 2000, at approximately 2:00 p.m., a woman called 911 and told the operator that a man with a gun was in the vicinity of Halsey Street and Lewis Avenue. She described him as a tall, light-skinned black male, heavyset," }, { "docid": "19269963", "title": "", "text": "the relatively short period of delay, the lack of bad faith or a pattern of neglect by the prosecutors, and the lack of prejudice to the defendant. Here, as discussed below, dismissal without prejudice is a sufficient sanction under the Speedy Trial Act in light of all of the relevant factors. I. Background A. Facts On March 12, 2008, defendant was arrested by the Village of Hempstead Police Department pursuant to two bench warrants issued by the Honorable Edward Marón of Nassau County Criminal Court on January 18, 2008, for (1) Robbery in the Second Degree, Assault in the Second Degree and Resisting Arrest; and (2) failure to pay a fine subsequent to a conviction for Robbery in the Second Degree. When arrested, defendant was allegedly in possession of a loaded firearm and was charged with Criminal Possession of a Weapon in the Second and Third Degree in violation of New York Penal Law §§ 265.03 and 265.02. According to the government, that weapons charge was subsequently referred to the United States Attorney’s Office to determine if federal prosecution was warranted. On June 13, 2008, a jury returned a verdict in Nassau County Criminal Court convicting defendant for the crimes of Robbery in the Second Degree, Assault in the Second Degree, and Resisting Arrest. Defendant was sentenced in July of 2008 to a term of ten years’ imprisonment for the robbery charge, consecutive to a term of seven years’ imprisonment for assaulting a police officer, and a concurrent term of one year imprisonment for resisting arrest. On September 2, 2008, a federal criminal complaint was filed in this Court, arising from the March 12, 2008 state arrest, which charged defendant with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Specifically, the criminal complaint alleged that, during the arrest of the defendant by members of the Village of Hempstead Police Department on March 12, 2008 based upon the warrant issued by the Nassau County Criminal Court, “detectives recovered a concealed .380 Auto Bryco Arms pistol and seven live .380 caliber cartridges from the defendant’s" }, { "docid": "2229876", "title": "", "text": "DECISION & ORDER LISA MARGARET SMITH, United States Magistrate Judge. Following a judgment entered in his favor on December 15, 2014, Plaintiff Jayvon Elting moved for an award of reasonable attorneys’ • fees 'arid costs pursuant to 42 U.S.C. § 1988 ánd Rule 54(b)' of the Federal Rules of Civil Procedure. Pl.’s Mot., Jan. 16, 2015, ECF No. 101. Defendant Officer Gregg McGinley opposed the motion. Defs.’ Opp. Br., Aug. 10, 2015, ECF No. 170. For the reasons stated below, Plaintiffs motion is granted to the extent set forth herein. BACKGROUND Plaintiff Jayvon Elting commenced this action on November 7,. 20,11, asserting claims for false arrest, excessive force, and malicious prosecution against Defendant Officer Gregg McGinley. Compl. ¶¶ 31-32, Nov. 7, 201Í, ECF No. 1. Elting’s claims were asserted pursuant to 42 U.S.C. § 1983 in the context of the Fourth Amendment guarantee of freedom from unreasonable seizures. Thereafter, Officer McGinley answered the Complaint, generally denying all allegations of wrongdoing. Answer, Dec. 28, 2011, ECF No. 5. Elting’s claims stemmed from an incident on October 2, 2009, during which Officer McGinley arrested Elt-ing, and thereafter charged Elting with obstructing governmental administration in the second degree (New York Penal Law (“Penal Law”) § 195.05), resisting arrest (Penal Law § 205.30), and criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03). On June 5, 2014, the Court denied Officer McGinley’s motion for summary judgment on Elting’s claims for false arrest, excessive force, and malicious prosecution. Decision & Order, June 5, 2014, ECF No. 51. A jury trial was scheduled to commence on September 15, 2014. Minute Entry, June 18, 2014. Thereafter, the parties notified the Court that the .parties had reached a verbal settlement agreement. Notice of Settlement, Aug. 20, 2014, ECF No. 60. On August 26, 2014, the Court entered an Order of Discontinuance subject to reopening should a settlement not be concluded within forty-five (45) days of the date of the. Order. Order, Aug. 26, 2014, ECF.No. 61. Elting’s counsel notified the Court on September 18, 2014, that a settlement could not be' finalized. PL’s" }, { "docid": "16643289", "title": "", "text": "we note three key circumstances: Rodriguez precipitated the incident, Morales hit Rodri guez once, and he struck her in an attempt to counter her act of throwing household objects at him, including a vase. The record does not indicate either the severity of the blow or where Rodriguez was hit. Though most of the Listed Offenses involve conduct that is not specifically directed at a victim, three of them — disorderly conduct, disturbing the peace, and resisting arrest — can encompass conduct harming another person. Whether Morales’s conduct should be regarded as clearly more serious than the conduct encompassed by the three Listed Offenses that include conduct harming another person is illuminated by several of the factors from the multifactor test, notably how seriously New York regarded his conduct. Morales was not convicted of assault or any other offense that generically involves use of force against another person. Instead, he was convicted only of second-degree harassment, an offense that New York classifies, along with disorderly conduct, as an offense against public order. See N.Y. Penal Law §§ 240.20, 240.26 (McKinney 2000). Moreover, the definition of “physical injury,” required for an assault, was “intended to exclude such things as petty slaps ... and the like [which are] more appropriately prosecuted as the minor offense of harassment.” Id. § 240.26 (Practice Commentary) (internal quotation marks omitted). Furthermore, the offense is a violation for which the maximum punishment is fifteen days, whereas some of the Listed Offenses are class A misdemeanors, for which the maximum punishment is one year. See, e.g., “criminal contempt,” see id. § 215.50 (second-degree criminal contempt); “resisting arrest,” see id. § 205.30 (resisting arrest); “failure to obey a police officer,” see id. § 195.05 (second-degree obstruction of government administration). Finally, Morales’s punishment was a conditional discharge, an unsupervised release conditioned on his avoiding additional arrests for one year. See id. § 65.05. We also consider “the level of culpability involved,” Hardeman, 933. F.2d at 281, in the offense of second-degree harassment and relevant Listed Offenses such as disorderly conduct and resisting arrest, the most serious of the Listed Offenses." }, { "docid": "23540796", "title": "", "text": "LEAVY, Circuit Judge: Wayne Johnson, an attorney, appeals the district court’s denial of a motion for reconsideration in which he challenged an order that he pay sanctions for failing to attend a settlement conference. Gregory Ayers, Johnson’s client in the district court, appeals the district court’s dismissal of his action under 42 U.S.C. §§ 1981, 1983, and 1985, in which he alleged various civil rights violations in connection with two arrests. We affirm as to Johnson. As to Ayers, we affirm in part and reverse and remand in part. FACTS Ayers filed a complaint in federal district court against the City of Richmond, claiming that the city and its police officers violated 42 U.S.C. §§ 1981, 1983, and 1985 by twice arresting him unconstitutionally. Ayers also alleged that the police used excessive force and took $450 from him during the second arrest. During Ayers’ first arrest on February 16, 1986, the police found marijuana and a gun in his car. Ayers was charged in a Contra Costa County Municipal Court with the following misdemeanors: failure to yield at a stop sign, possession of marijuana, driving in possession of marijuana, possession of a concealed weapon, and possession of a loaded firearm. During Ayers’ second arrest on July 13, 1986, the police once again found a gun in his car. Ayers was charged in a separate action in the same court with the misdemeanors of possession of a concealed weapon and possession of a loaded firearm. In both criminal actions, Ayers’ counsel moved under Cal. Penal Code § 1538.5 (West 1982 & Supp.1989) to suppress the evidence obtained in the searches attendant to Ayers’ arrests on the ground the searches violated his fourth amendment rights. The municipal court denied both motions. The denials of the motions were affirmed on appeal by the appellate department of the Contra Costa County Superior Court. With respect to the first action, Ayers petitioned the superior court for rehearing. The appellate department certified the case to the court of appeal, which then declined to consider it. With respect to the second action, the appellate department denied Ayers’" }, { "docid": "12107091", "title": "", "text": "lie on the ground. He initially took several steps but suddenly stopped and turned back toward his apartment. At that point, a member of the MERGE unit shot Fisher in the leg with a nonlethal rubber bullet. Fisher then surrendered and was finally taken into police custody. It was undisputed at trial that no attempt was made at any point during the standoff to obtain an arrest warrant. Fisher was tried for felony violations of California Penal Code sections 417 and 417.8, which punish, in general, drawing, exhibiting, or using a firearm or deadly weapon against a peace officer with the intent to resist or prevent arrest. The criminal jury deadlocked, and Fisher ultimately pleaded no contest to a misdemean- or charge of brandishing a firearm in the presence of a security guard. B Fisher and his wife subsequently filed an action under 42 U.S.C. § 1983 against the City of San Jose, its police department, and many of the officers involved in the standoff. The civil rights complaint alleged, inter alia, that police violated Fisher’s Fourth Amendment right to be free from unreasonable seizure based on their failure to obtain an arrest warrant before effecting his full physical arrest and on the alleged use of excessive force to effectuate that arrest. The case was tried to a civil jury. After the presentation of all of the evidence, Fisher moved for judgment as a matter of law under Federal Rule of Civil Procedure 50(a). His motion was denied, and the jury returned a verdict in favor of the police on all claims. Fisher then renewed his motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b). The district court granted the motion as to Fisher’s warrantless arrest claim, and denied the motion on the balance of Fisher’s claims. The district court ordered the City to pay Fisher one dollar in nominal damages and to train its officers “on what is required under the Fourth Amendment and the case law interpreting it lawfully to arrest a suspect in his or her home and on the" }, { "docid": "2555232", "title": "", "text": "collateral estoppel does not bar suit. BACKGROUND ' A. Kyle Johnson’s Arrest and Subsequent Acquittal On March 2, 1993 Kyle Johnson was with two friends on the comer of Bailey and Sehreck Avenues in the City of Buffalo, when they were approached by defendants, officers of the Buffalo Police Department. The encounter resulted in the seizure of a loaded .38 caliber handgun, and Johnson’s arrest on a charge of illegal possession of a weapon. Defendants also seized bags of what they thought was crack cocaine, but later turned out to be Ivory soap flakes. Johnson was taken to the police station and charged with third-degree criminal possession of a weapon in violation of N.Y. Penal Law § 265.02(3) & (4) and seventh-degree criminal possession of a controlled substance in violation of N.Y. Penal Law § 220.03. The drug charge was dropped after laboratory tests revealed that the seized substance was soap. A grand jury indicted Johnson on the weapons charge. Prior to trial, Johnson moved to suppress the gun as the product of an illegal arrest. A pretrial suppression hearing was held on December 8, 1993; At the hearing, Johnson’s counsel cross-examined the prosecution’s witnesses and drew the hearing officer’s attention to inconsistencies in their testimony. Nonetheless, the hearing officer concluded there was probable cause for the arrest and recommended that the suppression motion be denied. An order denying the motion was entered by the New York State Supreme Court, Erie. County, on January 14, 1994. The State criminal proceedings culminated in a two-day jury trial. At the conclusion of the trial, the juty returned a verdict of not guilty. B. The Proceedings Below Following the acquittal, on April 13, 1994, Johnson and his wife Leticia filed the instant complaint against the arresting police officers in the District Court for the Western District of New York (EUvin, J.) under 42 U.S.C. § 1983 alleging false arrest and malicious prosecution. After filing their answer, defendants moved for summary judgment on the ground that the finding of probable cause to arrest plaintiff made at the pretrial suppression hearing in the earlier State" }, { "docid": "1547101", "title": "", "text": "Court’s Grant of Summary Judgment in Favor of Defendants on Claims Based on New York Civil Rights Law § 40-c The plaintiffs correctly point out that in its oral decision the court cited the definition of harassment in the first degree found at New York Penal Law § 240.25 effective November 1,1992. The court determined that based on that definition of harassment, which requires repeated conduct in order to find a violation, the facts presented by the plaintiffs did not show that any defendant had harassed the plaintiffs, and so granted summary judgment in favor of the defendants. Plaintiffs now point out that on September 4, 1992, the date of the alleged violation, a different definition of harassment was in effect. Nonetheless, this definition too requires repeated actions in order to find a violation. See N.Y.Penal Law § 240.25 (McKinney 1989) ; see also People v. Wood, 59 N.Y.2d 811, 451 N.E.2d 485, 464 N.Y.S.2d 738 (Ct.App.1983) (stating that harassment cannot be established without the presentation of evidence that defendant’s conduct was more than an isolated incident). So based on the same lack of facts supplied by the plaintiffs in the original motion, the court holds that both under the new and old definitions of harassment found at Penal Law § 240.25, summary judgment is appropriately granted in favor of the defendants on claims pursuant to New York Civil Rights Law § 40-c. O. Plaintiffs’ Motion for Certification Plaintiffs seek the entry of a final judgment on the issue of fourth amendment violations including the determination of summary judgment in favor of the City of Oneonta on the fourth amendment violations. Plaintiffs bring this motion pursuant to Fed.R.Civ.P. 54(b) and alternatively, should the court refuse their Rule 54(b) motion, they seek certification to the Second Circuit Court of Appeals on these issues pursuant to 28 U.S.C. § 1292(b). Plaintiffs also seek certification of an appeal on the issues of Class II certification but this issue is not ripe for final judgment at this time because the court has not yet ruled on the motion for reconsideration. Plaintiffs also seek certification" }, { "docid": "22567133", "title": "", "text": "had been screaming, flashed his badge and said “Lady, I am the police, and you are under arrest.” Mrs. Lowth immediately stopped resisting. While Officer Grant and Mrs. Lowth were struggling over control of the unmarked vehicle, Mr. Lowth got out of his car and— shouting and cursing — went toward his wife and Officer Grant, as fast as his bad back would allow. Defendant Michael Hoekwater, who was standing nearby with several other uniformed officers, pointed his gun at Mr. Lowth and ordered him to stop. He put Mr. Lowth up against the police car and held him there for about 30 seconds until Mr. Lowth informed the officer that 195 Santin Drive was his home. Mrs. Lowth was immediately taken to the police station and was charged with unauthorized use of a motor vehicle, in violation of New York Penal Law § 165.05; with reckless endangerment, in violation of New York Penal Law § 205.30; and with resisting arrest, in violation of New York Penal Law § 120.20. She was subsequently prosecuted on each of these three charges, and in March 1994 a jury acquitted her on all counts. The Lowths then brought this suit, under 42 U.S.C. § 1983 and New York law. Mrs. Lowth claimed that Officer Grant’s decision to arrest her for reckless endangerment and unauthorized use of a motor vehicle amounted to a false arrest under New York law, and hence infringed her Fourth Amendment right to be free from unreasonable searches and seizures. She also claimed that Officer Grant’s decision to charge her with these crimes and with the additional crime of resisting arrest constituted malicious prosecution, and therefore violated her Fourteenth Amendment due process rights. Both Mr. and Mrs. Lowth asserted claims for assault and battery amounting to an unconstitutional use of excessive force against Officers Grant and Hoekwater. They included the Town of Cheektowaga and the other officers involved in the investigation that night in their suit. The district court (Elfvin, J.) granted summary judgment to the defendants on all grounds. The court found that the Town of Cheektowaga could not" }, { "docid": "16882083", "title": "", "text": "at 582, 116 S.Ct. 1589 (citation omitted). iii. Difference between this remedy and the civil penalties authorized or imposed in comparable cases In Gore, the Supreme Court stated that “[c]omparing the punitive damages award and the civil or criminal penalties that could be imposed for comparable misconduct provides a third indicium of excessiveness.” Gore, 517 U.S. at 583, 116 S.Ct. 1589. The Court established this as a third indicium of excessiveness in order to “accord substantial deference to legislative judgments concerning appropriate sanctions for the conduct at issue.” Id. (internal quotation marks and citation omitted). The offense of “falsely reporting an incident in the third degree” under New York law provides a useful comparison in this case. The New York Penal Law classifies falsely reporting an incident in the third degree as a class A misdemeanor. N.Y. Penal Law § 240.50. “A person is guilty of falsely reporting an incident in the third degree when, knowing the information reported, conveyed or circulated to be false or baseless, he or she: ... (3) [gratuitously reports to a law enforcement officer or agency (a) the alleged occurrence of an offense or incident which did not in fact occur....” Id. A person convicted of a class A misdemeanor may be sentenced to a term of imprisonment “not [to] exceed one year,” N.Y. Penal Law § 70.15(1), and he or she may be fined by an amount “not exceeding one thousand dollars,” N.Y. Penal Law § 80.05, but neither a prison sentence nor a fine is required under New York law. “The fact that New York classes [Trigg’s] conduct as warranting criminal prosecution tends to confirm the appropriateness of the imposition of a punitive award.” Payne, 711 F.3d at 103. Meanwhile, “the fact that the offense is ... only a misdemeanor[ ] and that courts are at liberty ... to impose no imprisonment or fine whatsoever ... tend to suggest that New York regards this conduct as occupying the lower echelons of criminality.” Id. at 104. The maximum limits set by the New York legislature on the criminal penalties for Trigg’s conduct further confirm" }, { "docid": "3012948", "title": "", "text": "DECISION AND ORDER BERMAN, District Judge. I. INTRODUCTION Plaintiff Rudy Fletcher (“Plaintiff’ or “Fletcher”) has filed a motion in limine for an order precluding from trial introduction of evidence of his prior criminal convictions and prior drug use; and for an order admitting into evidence the entire personnel records of the individual police officer defendants; as well as the 1994 so-called Mollen Commission Report and police training manual. Defendants have cross-moved, in limine, seeking the admission of Plaintiffs prior criminal convictions (and use of aliases) and drug use; and precluding use at trial of the personnel records of the individual police officer defendants and the Mollen Commission Report. For the reasons set forth below, Plaintiffs motion is granted in part and denied in part; and Defendants’ motion is granted in part and denied in part. II. DISCUSSION A. Criminal Convictions and Use of Aliases Defendants’ seek to introduce into evidence the following criminal convictions of Plaintiff in order to impeach his credibility: (i) August 10, 1990 conviction for invalid use of a credit card with fraudulent intent, a Class-A misdemeanor under New York Penal Law § 165.15(1); (ii) March 26, 1991 conviction for criminal possession of a controlled substance, a Class-A misdemeanor under New York Penal Law § 220.03; (iii) February 24, 1992 conviction for in-tentdraudulent obtaining transportation without paying, a Class-A misdemeanor under New York Penal Law § 165.15(3); (iv) April 29, 1993 guilty plea to intent/fraudulent obtaining transportation without paying, a Class-A misdemeanor under New York Penal Law § 165.15(3); and (v) June 29, 1993 guilty plea to at tempted robbery in the second degree, a Class-D felony under New York Penal Law § 110/160.0. (Joint Statement, pp. 2-3). Defendants also seek to introduce into evidence eighteen (18) aliases used by Plaintiff; Plaintiff used these aliases in connection with the commission of the (five) crimes fisted above, as well as other (criminal) activities that are too remote in time to be admitted into evidence. 1. Crimes Involving Dishonesty or False Statement Relying on Federal Rules of Evidence (“Fed.R.Evid.”) 403 and 609, Plaintiff seeks to preclude from trial evidence" }, { "docid": "3744526", "title": "", "text": "OPINION AND ORDER LEISURE, District Judge, This civil rights action, brought by plaintiff, Edward 25X King (“King”), pursuant to 42 U.S.C. § 1983, was tried to a jury on May 12-15, 1992. Defendants Michael Macri (“Macri”) and Edward Kondek (“Kondek”) now move the Court, pursuant to Fed.R.Civ.P. 50(b) and 59(a), for judgment as a matter of law, a new trial or a remittitur of the damages award. For the following reasons, the motion is denied. BACKGROUND On June 20, 1983, plaintiff was arrested in the New York Criminal Courthouse, located at 100 Centre Street, in New York City (“Criminal Court”), after allegedly making an obscene gesture at Macri, who was employed as a Court Officer in the Criminal Court, in Courtroom All Purpose 1 (“AP 1”). After allegedly making the obscene gesture, King left the courtroom, and was followed out of AP 1 by Macri. Almost immediately thereafter, a scuffle ensued, involving King, Macri and two other Court Officers: Kondek, who had been working with Macri in AP 1, and Rudolf Marrero (“Marrero”), who had been working across the hall, in Courtroom All Purpose 7 (“AP 7”). As a result of this incident, King was arrested; charged with obstructing governmental administration, assault, disorderly conduct and resisting arrest; and incarcerated until his trial in August 1983. Before King’s criminal trial, the charge of obstructing governmental administration was dropped. Thereafter, at his criminal trial in August 1983, the assault charge was dismissed by the court and King was acquitted of the remaining charges by the jury. In September 1983, King filed the instant suit, claiming that Macri, Kondek, Marrero and Ann Tyler (“Tyler”) had violated his federal civil rights, by, inter alia, using excessive force during the arrest, arresting him without probable cause and subjecting him to malicious prosecution. By Opinion and Order dated February 23, 1990, this Court dismissed plaintiff’s second cause of action, which asserted claims against Tyler based on her role as King’s parole officer. Thereafter, at the close of defendant’s case, on May 14, 1992, the Court granted a directed verdict, pursuant to Fed.R.Civ.P. 50(a), on the false" }, { "docid": "16643290", "title": "", "text": "Law §§ 240.20, 240.26 (McKinney 2000). Moreover, the definition of “physical injury,” required for an assault, was “intended to exclude such things as petty slaps ... and the like [which are] more appropriately prosecuted as the minor offense of harassment.” Id. § 240.26 (Practice Commentary) (internal quotation marks omitted). Furthermore, the offense is a violation for which the maximum punishment is fifteen days, whereas some of the Listed Offenses are class A misdemeanors, for which the maximum punishment is one year. See, e.g., “criminal contempt,” see id. § 215.50 (second-degree criminal contempt); “resisting arrest,” see id. § 205.30 (resisting arrest); “failure to obey a police officer,” see id. § 195.05 (second-degree obstruction of government administration). Finally, Morales’s punishment was a conditional discharge, an unsupervised release conditioned on his avoiding additional arrests for one year. See id. § 65.05. We also consider “the level of culpability involved,” Hardeman, 933. F.2d at 281, in the offense of second-degree harassment and relevant Listed Offenses such as disorderly conduct and resisting arrest, the most serious of the Listed Offenses. In New York and under the Model Penal Code (“MPC”), disorderly conduct includes fighting. See N.Y. Penal Law § 240.20(1); MPC § 250.2(l)(a). Although disorderly conduct is often merely loud or obnoxious behavior, or brawling among willing combatants, in many jurisdictions incidents of domestic violence are prosecuted as disorderly conduct. See, e.g., State v. Leavitt, 8 Conn.App. 517, 520, 513 A.2d 744, 746 (Conn.App.1986) (father convicted of disorderly conduct for putting daughter in headlock and dragging her through house); People v. Kulpa, 102 Ill.App.3d 571, 575, 58 Ill.Dec. 222, 430 N.E.2d 164, 167 (1981) (discussing husband’s disorderly conduct conviction for throwing a plate of food at wife). Resisting arrest also involves violent conduct that most people would recognize as involving a significant degree of moral guilt. Moreover, unlike disorderly conduct, this is true with respect to almost all possible violations of the offense. The defendant must “create[ ] a substantial risk of bodily injury to the public servant or anyone else, or employ[ ] means justifying or requiring substantial force to overcome the resistance.” MPC" }, { "docid": "7964093", "title": "", "text": "are relevant to resolution of the instant motion. This lawsuit arises out of criminal proceedings against Coggins, during which he was arrested and charged in Nassau County with two counts of Criminal Possession of a Weapon in the Third Degree, in violation of Penal Law §§ 265.02(3) and (4). (Complaint (“Compl.”) ¶ 19.) According to the complaint, Coggins was innocent of the crimes with which he was charged, and defendants knew that Coggins was innocent. (Compl. ¶¶ 20, 42, 48.) The complaint alleges that defendants “actively instigated and encouraged the prosecution of plaintiff’ and, inter alia, manufactured the charges against plaintiff, withheld information that would have exonerated him, and deprived plaintiff of his due process rights. (Compl. ¶¶32, 33, 35, 43, 46.) Coggins now asserts claims of civil rights violations, conspiracy, and New York state intentional torts against defendants. Following the dismissal of the criminal charges against plaintiff, Buonora was indicted for perjury in connection with the testimony that he gave to the grand jury in the underlying criminal action against plaintiff. (Buonora Memorandum of Law (“Buonora Mem.”), at 2.) Buonora claims that Vara was granted transactional immunity in exchange for his testimony in the grand jury proceedings considering perjury charges against Buonora. (Buonora Affidavit (“Buonora Aff.”) ¶ 13; Buonora Mem., at 2.) Buonora subsequently pled guilty to one count of misdemeanor perjury and was disciplined by the Police Department. (Buonora Mem., at 2.) Buonora was served with the complaint in this case in September 2007. The complaint alleged that Buonora “was a police officer employed by the County, under the direction of the Nassau Police and County and was acting in furtherance of the scope of his employment ----” (Compl. ¶ 13.) The County Attorney at that time acted on his behalf in seeking and receiving two extensions of time in which to respond to the complaint. (Buonora Mem., at 2, Exs. A and B; Buonora Aff. ¶ 4; County Defendants’ Memorandum of Law in Opposition (“County Def. Mem.”), at 6.) In September 2007, after the filing of the complaint by Coggins, the law offices of Mr. Laurence Jeffrey" }, { "docid": "6395069", "title": "", "text": "the second degree; (3) assault in the first degree; (4) first degree burglary — assault or menace; (5) first degree burglary — deadly weapon; (6) menacing; and (7) possession of a weapon by a felon. The jury convicted Mr. Brooks of all charges except the count for possession of a weapon by a felon. The jury also found Mr. Brooks did not use or possess a firearm for the purpose of imposing a sentence enhancement. Thereafter, Mr. Brooks brought the instant civil action against Deputies Gaenzle and Smith. In his second amended complaint, Mr. Brooks raised three claims for damages, including allegations of: (1) a violation of 42 U.S.C. § 1983 based on the deputies’ use of excessive force in seizing him by gunshot during the burglary; (2) a violation of 42 U.S.C. § 1983 based on their alleged malicious prosecution and a violation of 42 U.S.C. § 1985 for their alleged conspiracy to make false reports of his possession of a gun; and (3) assault and battery by Deputy Gaenzle constituting an actionable tort under state law. Thereafter, the district court granted the deputies’ motion for summary judgment on each claim. Mr. Brooks now appeals. We recount the district court’s resolution of each of Mr. Brooks’s claims and the issues the parties raise on appeal as follows in our discussion of those issues. II. Discussion A. Excessive Force Issue In his first claim for relief under 42 U.S.C. § 1983, Mr. Brooks asserted Deputies Gaenzle and Smith violated his Fourth Amendment right to be free from unreasonable seizure when they used excessive and deadly force in shooting him as he fled. In ruling on the deputies’ motion for summary judgment, the district court held no excessive force occurred based on its determination Mr. Brooks’s shooting did not constitute a seizure and its alternative determination the force used was objectively reasonable under the circumstances presented. In addressing the seizure issue, the district court relied on the Supreme Court’s decision in Brower v. County of Inyo, 489 U.S. 593, 595-96, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989), for the proposition a" }, { "docid": "3241649", "title": "", "text": "PARKER, Circuit Judge: Petitioner appeals from an order of the United States District Court for the Southern District of New York (Marrero, J.), entered August 3, 2000, denying his petition for a writ of habeas corpus. This appeal requires us to decide the following questions: (1) whether the Supreme Court has “clearly established” that jeopardy attaches upon a trial court’s unconditional acceptance of a guilty plea to the lesser included offense in a two-count indictment, and therefore that the Double Jeopardy Clause bars subsequent prosecution (or reinstatement of the indictment) on a greater felony offense; (2) whether the New York Court of Appeals applied a rule that is “contrary to” this clearly established federal law in denying petitioner’s Article 78 petition; and (3) the subsidiary factual question of whether the greater offense— felony possession of a weapon — was in fact “pending” when the defendant pled guilty to the lesser included misdemeanor offense of criminal possession of a weapon in the fourth degree. Petitioner is currently serving an indeterminate term of imprisonment of from two and one-half to five years for Criminal Possession of a Weapon in the Third Degree pursuant to New York Penal Law (“NYPL”) § 265.02, a class “D” felony. See NYPL § 70.02(e). Petitioner was charged in New York State court in a two-count indictment with third degree felony possession of a weapon (not in a person’s home or place of business) and a lesser included count of fourth degree misdemeanor weapon possession, pursuant to New York Penal Law §§ 265.02 and 265.01, respectively. On June 4, 1997, Morris pleaded guilty to the felony charge. The trial court had initially accepted, with no objection from the prosecution, petitioner’s guilty plea to the misdemeanor offense. However, under somewhat complicated factual circumstances detailed more fully below, the trial court, over defense objection, reinstated the felony count and declined to impose the bargained for sentence on the misdemeanor. Petitioner now contends that the New York trial court violated his rights under the Double Jeopardy Clause when it improperly reinstated the felony weapon possession count after accepting his guilty plea" }, { "docid": "1476792", "title": "", "text": "defendant and the defendant’s current location. The assertion that the defendant is engaged in criminal activity must also be reliable. That was missing here. I agree with the government’s observation, in its most recent submission to the court, that “Public safety necessitates that the police immediately investigate allegations of gun possession and take reasonable steps to protect themselves and the public.” Nonetheless, J.L. requires suppression of a gun where the police stop a defendant based on the call of an unknown informant, who will not be accountable for her call, and whose assertion of illegality is not corroborated. The motion to suppress the gun seized from the defendant and his post-arrest statements is granted. SO ORDERED. REPORT AND RECOMMENDATION LEVY, United States Magistrate Judge. By order dated August 1, 2000, the Honorable Nina Gershon, United States District Judge, referred this matter to me for a report and recommendation on defendant’s motion to suppress. For the reasons stated below, I respectfully recommend that defendant’s motion be granted and that the handgun and defendant’s subsequent statements to law officers be suppressed. BACKGROUND AND FACTS Defendant Tarrick Person (“Person” or “defendant”) brought this motion on August 1, 2000 pursuant to Rules 12(b)(3) and 41 of the Federal Rules of Criminal Procedure, alleging that the stop and search of his person were unreasonable and violated his Fourth Amendment rights. Defendant seeks to suppress the seized handgun found in his possession by officers of the New York City Police Department (“NYPD”) and any post arrest statements pursuant to the “fruit of the poisonous tree” doctrine. Defendant was arrested on May 19, 2000 by NYPD officers and charged by the Kings County District Attorney with Criminal Possession of a Weapon in the Third Degree, in violation of New York State Penal Law § 265.02(4). (Defendant Tar-rick Person’s Memorandum of Law in Support of His Pre-Trial Motions (“Dft’s Mem.”) at 2). On June 12, 2000 Person was arrested pursuant to 18 U.S.C. § 922(g)(1), and charged with being a felon in possession of a firearm that had been shipped and transported in interstate or foreign commerce. On" }, { "docid": "2229877", "title": "", "text": "2, 2009, during which Officer McGinley arrested Elt-ing, and thereafter charged Elting with obstructing governmental administration in the second degree (New York Penal Law (“Penal Law”) § 195.05), resisting arrest (Penal Law § 205.30), and criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03). On June 5, 2014, the Court denied Officer McGinley’s motion for summary judgment on Elting’s claims for false arrest, excessive force, and malicious prosecution. Decision & Order, June 5, 2014, ECF No. 51. A jury trial was scheduled to commence on September 15, 2014. Minute Entry, June 18, 2014. Thereafter, the parties notified the Court that the .parties had reached a verbal settlement agreement. Notice of Settlement, Aug. 20, 2014, ECF No. 60. On August 26, 2014, the Court entered an Order of Discontinuance subject to reopening should a settlement not be concluded within forty-five (45) days of the date of the. Order. Order, Aug. 26, 2014, ECF.No. 61. Elting’s counsel notified the Court on September 18, 2014, that a settlement could not be' finalized. PL’s Letter Mot., Sept. 18, 2014, ECF No. 62. On December 1, 2014, the Court granted Elting’s' motion to reopen the matter and scheduled a jury trial to commence. Order, Sept. 19, 2014, ECF No. 69; Minute Entry, Oct. 1, 2014. Ón November 21, 2014, the Court’ so ordered the parties’ stipulation to discontinue Elting’s malicious prosecution, claim against Officer McGinley. , Partial Stipulation & Order, Nov. 21, 2014, ECF No. 87. The jury trial lasted from December 1, 2014, until December 9; 2014. After the close Of evidence on December 4, 2014, the Court as a matter of law granted Elting’s Federal Rule of Civil Procedure Rule 50 motion, finding Officer McGinley liable for Eltihg’s' false arrest claim, and granted Elting’s Rule 50 motion as to the first two elements (color of state law and deprivation of a federal right) of Elting’s éxcessive force claim. On December 9, 2014, the jury reached a verdict in favor of Elting, awarding him $115,000 for compensatory damages on the false arrest claim, and reached a verdict in favor" }, { "docid": "22451593", "title": "", "text": "judgment as a matter of law, the district court erred by making factual findings adversely to Zellner, rather than viewing the record in the light most favorable to him, we reverse so much of the judgment as dismissed Zellner’s false arrest and malicious prosecution claims; we remand for entry of an amended judgment reinstating the jury’s awards of compensatory and punitive damages on those claims. We affirm so much of the judgment as dismissed the excessive force claim. I. BACKGROUND The present action arises out of a February 25, 2000 demonstration protesting the construction of a new housing development called Parrish Pond, across a highway from the Shinnecock Indian Reservation (“Shinnecock Reservation” or “Reservation”) in the Town of Southampton, New York (the “Town”). Photographs introduced at trial as plaintiffs exhibits (“PX”) showed demonstrators holding placards stating, e.g., “Sacred Land,” “Indian Land Forever,” and “Stop the Desecration.” Zellner, a sixty-odd-year-old adjunct professor of American history at Southampton College, served as co-chair of the Southampton Anti-Bias Task Force, a committee of citizens appointed by the Town to investigate complaints of bias and discrimination. He was called to the site of the demonstration by Benjamin Haile, a Shinnecock Reservation resident. The scene of the demonstration was a field area surrounding a grass-and-dirt driveway leading from a paved two-way public road to the Parrish Pond development construction site. Troopers from the State Police were present; Weber, a major, was in charge. During the demonstration, a construction-related truck attempted to enter the driveway and was temporarily blocked by some of the protestors. Zellner was arrested and charged with disorderly conduct in violation of N.Y. Penal Law (“Penal Law”) § 240.20(5) (McKinney 2000), and resisting arrest, in violation of N.Y. Penal Law § 205.30 (McKinney 1999). More than a year later, after over a dozen court appearances and adjournments, the charges against him were dismissed for lack of prosecution. A. The Present Action Zellner brought the present § 1983 action in 2002, alleging, to the extent pertinent here, claims of false arrest, malicious prosecution, and use of excessive force during arrest. A trial was held on" } ]

[ { "docid": "22715691", "title": "", "text": "law. But conflicts are multiplied by treating as questions of law what really are disputes over proper accounting. The mere number of such questions and the mass of decisions they call forth become a menace to the certainty and good administration of the law. To achieve uniformity by resolving such conflicts in the Supreme Court is at best slow, expensive, and unsatisfactory. Students of federal taxation agree that the tax system suffers from delay in getting the final word in judicial review, from retroactivity of the decision when it is obtained, and from the lack of a roundly tax-informed viewpoint of judges. Perhaps the chief difficulty in consistent and uniform compliance with the congressional limitation upon court review lies in the want of a certain standard for distinguishing “questions of law” from “questions of fact.” This is the test Congress has directed, but its difficulties in practice are well known and have been subject of frequent comment. Its difficulty is reflected in our labeling some questions as “mixed questions of law and fact” and in a great number of opinions distinguishing “ultimate facts” from evidentiary facts. It is difficult to lay down rules as to what should or should not be reviewed in tax cases except in terms so general that their effectiveness in a particular case will depend largely upon the attitude with which the case is approached. However, all that we have said of the finality of administrative determination in other fields is applicable to determinations of the Tax Court. Its decision, of course, must have “warrant in the record” and a reasonable basis in the law. But “the 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, 146; Swayne & Hoyt, Ltd. v. United States, 300 U. S. 297, 304; Mississippi Valley Barge Line Co. v. United States, 292 U. S. 282, 286-7; Gray v. Powell, 314 U. S. 402, 412; Helvering v. Clifford, 309 U. S. 331, 336; United States v. Louisville & Nashville" } ]

[ { "docid": "13824475", "title": "", "text": "affecting his health and that of his wife) spent two-thirds of the taxable year in the United States, actively pursuing his profession here for profit. In his opinion in the Fiske case, 128 F. 2d at page 490, Circuit Judge Kerner said: “Residence is the place of abode, whether permanent or temporary, Penfield v. Chesapeake, etc., Co., 134 U.S. 351, 356, 357, 10 S.Ct. 566, 33 L.Ed. 940, a physical fact, Matter of Newcomb’s Estate, 192 N. Y. 238, 84 N.E. 950, 954, and means where a man abides or lives, Hunter v. Bremer, 256 Pa. 257, 100 A. 809, 811, Ann. Cas. 1918A, 152, and so applying the tests enumerated in the cases cited, we believe that Congress was not concerned with the question where a taxpayer had his permanent residence, but rather intended the act to apply to any American citizen actually outside of the United States for more than six months during the taxable year, engaged in the promotion of American foreign trade, and it is no answer to say that it was at all times Fiske’s intention to return to Paris and that he was prevented from carrying out this intention because of illness. Cf. District of Columbia v. Murphy, 314 U.S. 441, 62 S.Ct. 303, 86 L.Ed. 329. See also State of Texas v. State of Florida, 306 U.S. 398, 424, 425, 59 S.Ct. 563, [830], 83 L.Ed. 817, 121 A.L.R. 1179.” We point out that there is no question as to the power of the United States to tax the income earned by Swent in Mexico. Cook v. Tait, 265 U.S. 47, 44 S.Ct. 444, 68 L.Ed. 895. The exemption statute is thus a pure matter of legislative grace and such statutes should be construed strictly against the taxpayer claiming the statutory exemption. United States v. Stewart, 311 U.S. 60, 71, 61 S.Ct. 102, 85 L.Ed. 40. And such exemption statutes must be construed in the light of the objects and purposes which they were designed to subserve. Helvering v. New York Trust Co., 292 U.S. 455, 464, 465, 54 S.Ct. 806, 78 L.Ed." }, { "docid": "16028618", "title": "", "text": "legislative history and the - administrative practice are factors to be considered. United States v. Dakota-Montana Oil Co., 288 U.S. 459, 53 S.Ct. 435, 77 L.Ed. 893. It is agreed that § 116(a) was intended to stimulate foreign trade, and to relieve our citizens resident in foreign countries, engaged there in the promotion of American foreign trade for more than six months of the taxable year, from tax upon the income which they earned in the foreign country. In construing the phrase “bona fide nonresident of the United States for more than six months during the taxable year,” the Bureau of Internal Revenue has interpreted it as applying to any American citizen actually outside the United States for more than six months during the taxable year, and this construction finds support in the legislative history of the act. Respondent claims that Paris was Fiske’s bona fide residence and that when he came to the United States in 1935 he had an intention to return to Paris, which intention remained with him until his return to Paris in March, 1937. Residence is the place of abode, whether permanent or temporary, Penfield v. Chesapeake, etc., Co., 134 U.S. 351, 356, 357, 10 S.Ct. 566, 33 L.Ed. 940, a physical fact, Matter of Newcomb’s Estate, 192 N.Y. 238, 84 N.E. 950, 954, and means where a man abides or lives, Hunter v. Bremer, 256 Pa. 257, 100 A. 809, 811, Ann. Cas. 1918A, 152, and so applying the tests enumerated in the cases cited, we believe that Congress was not concerned with the question where a taxpayer had his permanent residence, but rather intended the act to apply to any American citizen actually outside of the United States for more than six months during the taxable year, engaged in the promotion of American foreign trade, and it is no answer to say that it was at all times Fiske’s intention to return to Paris and that he was prevented from carrying out this intention because of illness, cf. District of Columbia v. Murphy, 314 U.S. 441, 62 S.Ct. 303, 86 L.Ed. -. See" }, { "docid": "13120455", "title": "", "text": "In the cablegram, he also told her that he was considering future work in Russia in employment other than with the Badger Company, or in Sumatra. Fuller testified that during the year 1944, he intended to remain in Russia as long as the Badger Company had work for him to do, and that he definitely considered that such work would last through the year 1944, which it did, and, in fact, for a much longer period. Thereafter, Mrs. Fuller, because of the repeated frustrations and separation from her husband, began to suffer from nervousness, and decided, in order to recover, to go to Tucson, Arizona, for some months; and it was because of this circumstance, according to Fuller’s testimony, that he decided, during the middle of 1945, that he should come back home to her. He returned to America in October, 1945, after an absence of two years. Fuller’s testimony is substantiated by Formel in all important respects, and, in fact, is not attacked or questioned by the government. Was he, then, a bona fide resident of Russia during the taxable year of 1944, within the intendment of the statute exempting him from payment of income tax during that period? In this regard, we proceed to consider what is residence, and what is “bona fide residence,” within the meaning of the statute. Because “domicile” and “residence” are usually in the same place, they are frequently used as if they had the same meaning. “Domicile,” however, means living in a locality with intent to make it a fixed and permanent home, while “residence” simply requires bodily presence as an inhabitant in a given place. Commissioner of Internal Revenue v. Swent, 4 Cir., 155 F.2d 513. In the case before us, the income tax regulations governing the interpretation of section 116, the principal provision of the statute with which we are concerned, set forth that in order to determine who is a bona fide resident of a foreign country, reference should be made to Treasury Regulation 111, Sections 29.211-2 through 29.211-5, relating to what constitutes residence or non-residence in the United States" }, { "docid": "13824476", "title": "", "text": "was at all times Fiske’s intention to return to Paris and that he was prevented from carrying out this intention because of illness. Cf. District of Columbia v. Murphy, 314 U.S. 441, 62 S.Ct. 303, 86 L.Ed. 329. See also State of Texas v. State of Florida, 306 U.S. 398, 424, 425, 59 S.Ct. 563, [830], 83 L.Ed. 817, 121 A.L.R. 1179.” We point out that there is no question as to the power of the United States to tax the income earned by Swent in Mexico. Cook v. Tait, 265 U.S. 47, 44 S.Ct. 444, 68 L.Ed. 895. The exemption statute is thus a pure matter of legislative grace and such statutes should be construed strictly against the taxpayer claiming the statutory exemption. United States v. Stewart, 311 U.S. 60, 71, 61 S.Ct. 102, 85 L.Ed. 40. And such exemption statutes must be construed in the light of the objects and purposes which they were designed to subserve. Helvering v. New York Trust Co., 292 U.S. 455, 464, 465, 54 S.Ct. 806, 78 L.Ed. 1361. In view of what has been said, we feel that Swent, who in 1940 spent two-thirds of the year in the United States for pleasure and profit (though probably considerations of health had some influence), whose stay was neither casual nor incidental, was not “a bona fide non-resident of the United States for more than six months during the taxable year” as that phrase is used in the exemption statute. Nor does it seem to us that he is the victim of Congressional injustice. His contribution to this country, in the form of income taxes on his Mexican earnings in 1940, seem, under all the circumstances of this case, only a fair return for all the privileges he enjoyed under the beneficent aegis of our Government. Such a contribution, in spite of Swent’s obvious intention to return to Mexico, we think, conforms to the spirit of the exemption statute. The decision of the Tax Court of the United States is, therefore, reversed. Reversed. Judge GRONER is of opinion that the Tax Court was correct" }, { "docid": "21201905", "title": "", "text": "of the Treasury, or his delegate (the Commissioner), that he has been a bona fide resident of a foreign country or countries for an uninterrupted period which in-eludes an entire taxable year (in this case the year 1954). In determining that taxpayer had failed to establish a bona fide foreign residence, the Tax Court based its conclusion on taxpayer’s testimony and certain documentary evidence. Although taxpayer disagrees with some of the inferences drawn by the Tax Court from such evidence, the facts as stated are largely undisputed. The parties agree that the ultimate conclusion of residency is reviewable by this court as a question of law. In such cases it has been held that the conclusion reached by the Tax Court is “a conclusion of law or at least a determination of a mixed question of law and fact.” It is to be distinguished from “primary, evidentiary or circumstantial facts * * * [and] is subject to judicial review and, on such review, the court may substitute its judgment for that of the [Tax Court].” Bogardus v. Commissioner, 302 U.S. 34, 39, 58 S.Ct. 61, 64, 82 L.Ed. 32 (1937); Commissioner of Internal Revenue v. Fiske’s Estate, 7 Cir., 128 F.2d 487, 489 (1942), cert. denied, 317 U.S. 635, 63 S.Ct. 63, 87 L.Ed. 512; Weible v. United States, 9 Cir., 244 F.2d 158, 160-162 (1957); Commissioner of Internal Revenue v. Swent, 4 Cir., 155 F.2d 513, 514-515 (1946), cert. denied, 329 U.S. 801, 67 S.Ct. 491, 91 L.Ed. 685. The statute itself does not define the term “bona fide resident.” At best it is an elusive expression and one so peculiarly related to the facts in any given case “that each new case must be decided on the basis of its own unique attendant circumstances.” Nelson v. Commissioner, 30 T.C. 1151, 1153 (1958). It was aptly characterized by the Ninth Circuit when it was said that “residence * * * has an evasive way about it, with as many colors as Joseph’s coat. * *.*” Weible v. United States, supra, 244 F.2d at 163. The history of the various" }, { "docid": "13824465", "title": "", "text": "DOBIE, Circuit Judge. This is an appeal from a decision of the Tax Court of the United States allowing the taxpayers James Swent and Ursula Swent (husband and wife) an exemption from United States income taxes on $25,-000 earned during the year 1940 by James Swent in Mexico. There is no dispute as to the facts. The applicable statute is Section 116(a) of the Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code, § 116, prior to the 1942 amendments, which reads: “Sec. 116. Exclusions from gross income. “In addition to the items specified in section 22(b), the following items shall not be included in gross income and shall be exempt from taxation under this chapter: “(a) Earned income from sources without United States. In the case of an individual citizen of the United States, a bona fide non-resident of the United States for more than six months during the taxable year, amounts received from sources without the United States (except amounts paid by the United States or any agency thereof) if such amounts would constitute earned income as defined in section 25(a) if received from sources within the United States; but such individual shall not be allowed as a deduction from his gross income any deductions properly allocable to or chargeable against amounts excluded from gross income under this subsection. * * *» The only question presented to us for decision is whether, under the facts of this case, each of the Swents was “a bona fide non-resident of the United States for more than six months during the taxable year” (1940). The answer to this question depends upon the interpretation or construction of the words just quoted above. That, we think, is a question of law, so that we are not bound to follow the decision of the Tax Court under Dobson v. Commissioner, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248. Said Mr. Justice Jackson in that case (320 U.S. at page 501, 64 S.Ct. at page 246): “It is difficult to lay down rules as to what should or should not be reviewed in tax cases except in" }, { "docid": "21201906", "title": "", "text": "Bogardus v. Commissioner, 302 U.S. 34, 39, 58 S.Ct. 61, 64, 82 L.Ed. 32 (1937); Commissioner of Internal Revenue v. Fiske’s Estate, 7 Cir., 128 F.2d 487, 489 (1942), cert. denied, 317 U.S. 635, 63 S.Ct. 63, 87 L.Ed. 512; Weible v. United States, 9 Cir., 244 F.2d 158, 160-162 (1957); Commissioner of Internal Revenue v. Swent, 4 Cir., 155 F.2d 513, 514-515 (1946), cert. denied, 329 U.S. 801, 67 S.Ct. 491, 91 L.Ed. 685. The statute itself does not define the term “bona fide resident.” At best it is an elusive expression and one so peculiarly related to the facts in any given case “that each new case must be decided on the basis of its own unique attendant circumstances.” Nelson v. Commissioner, 30 T.C. 1151, 1153 (1958). It was aptly characterized by the Ninth Circuit when it was said that “residence * * * has an evasive way about it, with as many colors as Joseph’s coat. * *.*” Weible v. United States, supra, 244 F.2d at 163. The history of the various legislative enactments leading to the 1942 amendment presently before us, together with the appropriate Treasury Regulations drawn thereunder, has been the subject of frequent judicial analysis and need not be further extended here. Weible v. United States, supra; Fuller v. Hofferbert, 6 Cir., 204 F.2d 592 (1953); Downs v. Commissioner of Internal Revenue, 9 Cir., 166 F.2d 504 (1948), cert. denied, 334 U.S. 832, 68 S.Ct. 1346, 92 L.Ed. 1759; Meals v. United States, D.C.N.D. Cal., 110 F.Supp. 658 (1953); White v. Hofferbert, D.C.D.Md., 88 F.Supp. 457 (1950); Johnson v. Commissioner, 7 T.C. 1040 (1946). In applying the tests and principles used in determining the meaning of “nonresident alien” to the statute presently before us (footnote 4, supra), it seems clear that one of the proper distinctions to be recognized is that of “transients and sojourners on the one hand, and residents on the other.” Ditman v. Hofferbert, D.C.D.Md., 136 F.Supp. 542, 544 (1955). To the same effect are Weible v. United States, supra; Fuller v. Hofferbert, supra; Swenson v. Thomas, 5 Cir., 164 F.2d" }, { "docid": "11202792", "title": "", "text": "conclusions of the District Court. The Fourth Circuit, in Commissioner of Internal Revenue v. Swent, 1946, 155 F.2d 513, 514, passed upon the question of whether the taxpayer, under the facts of the case, was a bona fide nonresident of the United States for more than six months during the taxable year, under the original Section 116 prior to the 1942 amendment. Said the court: “The answer to this question depends upon the interpretation or construction of the words just quoted above [referring to Section 116]. That, we think, is a question of law, so that we are not bound to follow the decision of the Tax Court under Dobson v. Commissioner, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248. Said Mr. Justice Jackson in that case (320 U.S. at page 501, 64 S.Ct. at page 246): ‘It is difficult to lay down rules as to what should or should not be reviewed in tax cases except in terms so general that their effectiveness in a particular case will depend largely upon the attitude with which the ease is approached. However, all that we have said of the finality of administrative determination in other fields is applicable to determinations of the Tax Court. Its decision, of course, must have “warrant in the record” and a reasonable basis in the law. But “the judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body.” ’ ” Burden of Proof On the question of the burden which must be carried by the taxpayer in instances where he is seeking to bring himself within the provisions of exemption statutes see the following: Helvering v. Northwest Steel Rolling Mills, 311 U.S. 46, 49, 61 S.Ct. 109, 111, 85 L.Ed. 29, where it is said: “It is material that we are dealing here with a generally imposed surtax upon the undistributed net income of corporations, and that respondent’s claim is for a credit in the nature of a specially permitted deduction. It has been said many times that provisions granting special tax exemptions are" }, { "docid": "11202795", "title": "", "text": "be abdicated in a tax case more than in any other where the rights of suitors turn on the construction of a statute and it is our duty to decide what that construction fairly should be. * * Moreover, every deduction from gross income is allowed as a matter of legislative grace, and ‘only as there is clear provision therefor can any particular deduction be allowed. * * * A taxpayer seeking a deduction must be able to point to an applicable statute and show that he comes within its terms.’ New Colon ial Ice Co. v. Helvering, 292 U.S. 435, 440, 54 S.Ct. 788, 790, 78 L.Ed. 1348.” The court in Deputy v. Dupont, 308 U.S. 488, 493, 60 S.Ct. 363, 366, 84 L.Ed. 416, said: “But allowance of deductions from gross income does not turn on general equitable considerations. It ‘depends upon legislative grace; and only as there is clear provision therefor can any particular deduction be allowed.’ New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440, 54 S.Ct. 788, 78 L.Ed. 1348. And when it comes to construction of the statutory provision under which the deduction is sought, the general rule that ‘popular or received import of words furnishes the general rule for the interpretation of public laws,’ Maillard v. Lawrence, 16 How. 251, 261, 14 L.Ed. 925, is applicable.” Domicile and Residence It does seem appellants’ charge, to the effect that appellee is attempting to fuse two rather difficult words, “domicile” and “residence”, has some merit. To permit that would be to create a hybrid and but compound the present confusion. But if we are to resolve the questions now before us it is necessary that we come to grips once and for all with the meaning of these expressions as used in Section 116. Since countless pages have been devoted to the distinctions between the two words our treatment will be short. The court in the Swent case, supra, approved the statement appearing in the Matter of Newcomb's Estate, 192 N.Y. 238, 84 N.E. 950, 954. “ ‘Residence’ means living in a particular locality," }, { "docid": "13824466", "title": "", "text": "as defined in section 25(a) if received from sources within the United States; but such individual shall not be allowed as a deduction from his gross income any deductions properly allocable to or chargeable against amounts excluded from gross income under this subsection. * * *» The only question presented to us for decision is whether, under the facts of this case, each of the Swents was “a bona fide non-resident of the United States for more than six months during the taxable year” (1940). The answer to this question depends upon the interpretation or construction of the words just quoted above. That, we think, is a question of law, so that we are not bound to follow the decision of the Tax Court under Dobson v. Commissioner, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248. Said Mr. Justice Jackson in that case (320 U.S. at page 501, 64 S.Ct. at page 246): “It is difficult to lay down rules as to what should or should not be reviewed in tax cases except in terms so general that their effectiveness in a particular case will depend largely upon the attitude with which the case is approached. However, all that we have said of the finality of ad ministrative determination in other fields is applicable to determinations of the Tax Court. Its decision, of course, must have ‘warrant in the record’ and a reasonable basis in the law. But ‘the judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body.’ ” See, also, John Kelley Co. v. Commissioner, 66 S.Ct. 299, decided by the United States Supreme Court January 7, 1946. Since we think the decision of the Tax Court lacks “warrant in the record” and is without “a reasonable basis in the law”, we feel compelled to reverse that decision. James Swent first went to Mexico in 1915 and taxpayers were married there that year. In 1918 he was employed by the San Luis Mining Company at Tayoltita, Mexico, of which he became manager in 1920, a position" }, { "docid": "12834889", "title": "", "text": "that the finance companies would have a perfectly valid legal right to hold the corporations to the precise terms of their own written agreement since they would not be permitted to vary them by parol testimony to the effect that there was a side understanding that they would not be enforced, both the Commissioner and the Tax Court had ample basis for saying that the partnerships’ contribution of services in this situation was non-existent. If the opinion of the majority of the Court correctly states the law in a situation where the statute expressly gives to the Commissioner broad powers, then we shall indeed have come full cycle since Dobson v. C. I. R., 320 U.S. 489, 64 S.Ct. 239, 246, 88 L.Ed. 248, was decided by the Supreme Court. Of course the Dob-son rule—“The jurisdictional function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body”— was superseded by the amendment to the Internal Revenue Code which, now contained in 26 U.S.C.A. § 7482, provides that the Courts of Appeals shall have exclusive jurisdiction to review the deci sions of the Tax Court in the same manner and to the same extent as decisions of the District Courts in civil actions tried without a jury. Nevertheless the law in this Circuit, as expressed in the Grenada case, requires that before we reverse a decision of the Tax Court upholding the Commissioner in the exercise of his power of reallocation of income, we must find that the Commissioner’s determination was “unreasonable, arbitrary, or capricious,” and that the Tax Court’s affirming of such determination was equally so. Far from being unreasonable, arbitrary, or capricious I think there was ample basis for the Commissioner’s determination and that the Tax Court’s decision should be affirmed. . This is not an effort to apply on behalf of the Government the Statute of Frauds or the parol evidence rule. It is relevant to ascertain just how valuable a financial guarantee the partnership should receive consideration for." }, { "docid": "10427521", "title": "", "text": "federal tax purposes must depend in each case on its particular facts. If there is “a rational basis” for the conclusion of .5/* Tax Court, that conclusion is binding 1 ere Dobson v. Commissioner of Internal Revenue, 320 U.S. 489, 501, 64 S.Ct. 239, 88 L.Ed. 248. Where the evidence is conflicting or where the facts are undisputed and fair-minded men may honestly draw different conclusions therefrom, the con■'elusion reached by the Tax Court is binding. Tyson v. Commissioner of Internal Revenue, 8 Cir., 146 F.2d 50, 54. Considering this restricted field for review by this court, the intimate family relationship here and the burden of proof upon petitioner (Phillips v. Dime Trust & Safe Deposit Co., 284 U.S. 160, 167, 52 S.Ct. 46, 76 L.Ed. 220), we cannot say that the above evidence leaves no “rational basis” for the conclusion reached by the Tax Court. The manner of operation of this business preceding and during the years of this contract was consistent with a conclusion that this contract did not make “any substantial change in his [this petitioner’s] economic position.” The decision of the Tax Court is affirmed. Helvering v. Stuart, 317 U.S. 154, 161, 63 S.Ct. 140, 87 L.Ed. 154; Lyeth v. Hoey, 305 U.S. 188, 194, 59 S.Ct. 155, 83 L.Ed. 119, 119 A.L.R. 410; Burnet v. Harmel, 287 U.S. 103, 110, 53 S.Ct. 74, 77 L.Ed. 199; Farmers’ Union Co-op. Co. v. Commissioner of Internal Revenue, 8 Cir., 90 F.2d 488, 492; Wholesalers’ Adjustment Co. v. Commissioner of Internal Revenue, 8 Cir., 88 F.2d 156, 158; Mississippi Valley Trust Co. v. Commissioner of Internal Revenue, 8 Cir., 72 F.2d 197, 200. Same citations as in note 1. Helvering v. Stuart, 317 U.S. 154, 161, 63 S.Ct. 140, 87 L.Ed. 154; United States v. Pelzer, 312 U.S. 399, 402, 61 S.Ct. 659, 85 L.Ed. 913; Lyeth v. Hoey, 305 U.S. 188, 194, 59 S.Ct. 155, 83 L.Ed. 119, 119 A.L.R. 410. Putnam’s Estate v. Commissioner of Internal Revenue, 65 S.Ct. 811; Estate of Rogers v. Helvering, 320 U.S. 410, 413, 414, 64 S.Ct. 172, 88 L.Ed. 134;" }, { "docid": "11202793", "title": "", "text": "with which the ease is approached. However, all that we have said of the finality of administrative determination in other fields is applicable to determinations of the Tax Court. Its decision, of course, must have “warrant in the record” and a reasonable basis in the law. But “the judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body.” ’ ” Burden of Proof On the question of the burden which must be carried by the taxpayer in instances where he is seeking to bring himself within the provisions of exemption statutes see the following: Helvering v. Northwest Steel Rolling Mills, 311 U.S. 46, 49, 61 S.Ct. 109, 111, 85 L.Ed. 29, where it is said: “It is material that we are dealing here with a generally imposed surtax upon the undistributed net income of corporations, and that respondent’s claim is for a credit in the nature of a specially permitted deduction. It has been said many times that provisions granting special tax exemptions are to be strictly construed.” In New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440, 54 S.Ct. 788, 790, 78 L.Ed. 1348, the following statement appears: “Obviously, therefore, a taxpayer seeking a deduction must be able to point to an applicable statute and show that he comes within its terms. “These views, often reflected in decisions of this Court, have been recently reaffirmed and applied in Woolford Realty Co. v. Rose, 286 U.S. 319, 326 et seq., 52 S.Ct. 568, 76 L.Ed. 1128; Planters Cotton Oil Co. v. Hopkins, 286 U.S. 332, 52 S.Ct. 509, 76 L.Ed. 1135; and Helvering v. Independent Life Ins. Co., 292 U.S. 371, 54 S.Ct. 758, 78 L.Ed. [1311].” In White v. United States, 305 U.S. 281, 292, 59 S.Ct. 179, 184, 83 L.Ed. 172: “We are not impressed by the argument that, as the question here decided is doubtful, all doubts should be resolved in favor of the taxpayer. It is the function and duty of courts to resolve doubts. We know of no reason why that function should" }, { "docid": "16235829", "title": "", "text": "in the United States, as the case may be,” of an individual. (Emphasis added.) All parties to the appeal agree that Regulation 111, § 29.211-2, shall be specially considered. This regulation specifically relates to aliens in the United States and what circumstances constitute residence. The principles of this regulation are applicable to United States citizens present in foreign countries on the question of residence. Upon this statement of fact and upon the statutes and regulations referred to, the Commissioner held, and the Tax Court agreed, that the petitioners, while abroad, were not residents of a foreign country or countries, and that they did not qualify for the exemption. But before we apply the indicated test to the facts in the cases, and in preparation for applying it, we will revert for a moment to the exemption statute as it existed prior to the Amendment of 1942. If the taxpayer was a bona fide non-resident of the United States for more than six months of the tax year, he enjoyed the exemption. Strictly speaking, it will be observed, that it was not necessary under the statute, before amendment, to prove that the taxpayer was a resident- of any place. The negative that he was a non-resident of the United States was the issue. Proof that he was a resident of a foreign country would not be conclusive, for as held in Matter of Newcomb’s Estate, 192 N.Y. 238, 250, 84 N.E. 950, 954, a person may have two places of residence. “Resident” and “nonresident,” says Judge Dobie in C.I.R. v. Swent, 4 Cir., 155 F.2d 513, 515, certiorari denied 329 U.S. 801, 67 S.Ct. 491, “* * * are very slippery words, which have many and varied meanings.” In the Swent case, in which the original section was being construed, the issue was whether Swent, who had been in Mexico and, as well, in the United States during the tax year, was a non-resident of the United States. Proof that he was a resident of Mexico for more than six months or for 12 months of the tax year would not," }, { "docid": "13824474", "title": "", "text": "Commissioner: “The facts of the case carried a strong sympathetic appeal which perhaps influenced the decision.” In the Fiske case, Fiske had charge of the Paris office of an American firm. He and his family had long resided in Paris. In December 1935, he and his wife came to the United States with a clear intention of returning to Paris after a stay of three months in this country. In January 1936, he became ill and was unable, on account of illness, to return to Paris until 1937. The Fiske situation was different from our case in two respects: (1) Fiske was absent from France (and present in the United States) the whole of the taxable year; Swent was absent from Mexico (and present in the United States) two-thirds of the taxable year. (2) Fiske intended to spend more than six months of the taxable year out of the United States but was prevented from doing so by ill health, a factor beyond his control; Swent, of his own volition, (though partly influenced by considerations affecting his health and that of his wife) spent two-thirds of the taxable year in the United States, actively pursuing his profession here for profit. In his opinion in the Fiske case, 128 F. 2d at page 490, Circuit Judge Kerner said: “Residence is the place of abode, whether permanent or temporary, Penfield v. Chesapeake, etc., Co., 134 U.S. 351, 356, 357, 10 S.Ct. 566, 33 L.Ed. 940, a physical fact, Matter of Newcomb’s Estate, 192 N. Y. 238, 84 N.E. 950, 954, and means where a man abides or lives, Hunter v. Bremer, 256 Pa. 257, 100 A. 809, 811, Ann. Cas. 1918A, 152, and so applying the tests enumerated in the cases cited, we believe that Congress was not concerned with the question where a taxpayer had his permanent residence, but rather intended the act to apply to any American citizen actually outside of the United States for more than six months during the taxable year, engaged in the promotion of American foreign trade, and it is no answer to say that it" }, { "docid": "8646984", "title": "", "text": "plan. In the determination of the controversy, we have first to consider the extent of our power to review. For the Commissioner it is argued that the decisions of the Tax Court that the disallowed deductions constitute neither compensation for services rendered nor ordinary and necessary expenses, are factual, that they involve accounting practices, and if they have any substantial basis in the evidence we have no power to set them aside. This is in reliance upon Dobson v. Com’r, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248, followed in Com’r v. Scottish American Investment Co., Ltd., 323 U.S. 119, 65 S.Ct. 169, 89 L.Ed. 113; John Kelley v. Com’r, 326 U.S. 521, 66 S.Ct. 299, 90 L.Ed. 278, and McDonald v. Com’r, 323 U.S. 57, 65 S.Ct. 96, 89 L.Ed. 68, 155 A.L.R. 119. However, in Trust Under the Will of Bingham v. Com’r, 325 U.S. 365, 65 S.Ct. 1232, 1234, 89 L.Ed. 1670, the court had under consideration the interpretation of the phrase “all the ordinary and necessary expenses paid or incurred during the taxable year for the production or collection of income * * It held that, notwithstanding the weight of the Tax Court’s decision, the purpose of the section raised questions of law reviewable by the court, a view highlighted though not approved by Mr. Justice Frankfurter. The court was interpreting the meaning of phrases in a Statute and concluded that such interpretation involved questions, decision of which was unembarrassed by any disputed question of fact or any necessity to draw an inference of fact from basic findings. We are likewise confronted with a construction of statutory terms, and conceive the problem to be identical with that posed in the Bingham case, and to raise a clear-cut question of law. Except for the case of John Kelley v. Com’r, supra, the Bingham case appears to be the last word upon the power to review statutory interpretation and the Kelley case does not repudiate Bingham even though the court speaks through Mr. Justice Frankfurter. The court there dealt with “well understood words as used in the" }, { "docid": "13824467", "title": "", "text": "terms so general that their effectiveness in a particular case will depend largely upon the attitude with which the case is approached. However, all that we have said of the finality of ad ministrative determination in other fields is applicable to determinations of the Tax Court. Its decision, of course, must have ‘warrant in the record’ and a reasonable basis in the law. But ‘the judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body.’ ” See, also, John Kelley Co. v. Commissioner, 66 S.Ct. 299, decided by the United States Supreme Court January 7, 1946. Since we think the decision of the Tax Court lacks “warrant in the record” and is without “a reasonable basis in the law”, we feel compelled to reverse that decision. James Swent first went to Mexico in 1915 and taxpayers were married there that year. In 1918 he was employed by the San Luis Mining Company at Tayoltita, Mexico, of which he became manager in 1920, a position which he has held ever since. The taxpayers and their family lived in Tayoltita in a house belonging to the company. When Swent was absent from Mexico (an occurrence far from unusual), the mine was operated and managed by an assistant manager and a rather large staff of Mexicans and Americans. During these absences he was occasionally consulted by telegraph on questions of policy arising in connection with the management of the mine. In registering, which is required by the Mexican Government as a prerequisite to entering a gainful occupation in that country, Swent declared that he was a resident of Tayoltita. In his passports, too, that village was given as his place of residence. During the tax year 1940, the taxpayers spent 241 days (approximately two-thirds of the year) in the United States, on four different visits. And in each of the years 1939, 1942, 1943, taxpayers spent more than six months in this country. They rented an apartment in San Francisco during 1940, on a month to month basis and this apartment was" }, { "docid": "16235830", "title": "", "text": "be observed, that it was not necessary under the statute, before amendment, to prove that the taxpayer was a resident- of any place. The negative that he was a non-resident of the United States was the issue. Proof that he was a resident of a foreign country would not be conclusive, for as held in Matter of Newcomb’s Estate, 192 N.Y. 238, 250, 84 N.E. 950, 954, a person may have two places of residence. “Resident” and “nonresident,” says Judge Dobie in C.I.R. v. Swent, 4 Cir., 155 F.2d 513, 515, certiorari denied 329 U.S. 801, 67 S.Ct. 491, “* * * are very slippery words, which have many and varied meanings.” In the Swent case, in which the original section was being construed, the issue was whether Swent, who had been in Mexico and, as well, in the United States during the tax year, was a non-resident of the United States. Proof that he was a resident of Mexico for more than six months or for 12 months of the tax year would not, under the Newcomb’s case, have settled the issue, for non-constat he may have had a residence in the United States as well. At any rate, the word “resident” and its counterpart “non-resident” proved too “slippery” for judicial certainty, and the courts looking to the intent of the statute decided that actually its purpose was to exempt income earned by persons abroad when such persons had been absent from this country more than six months of the tax year. Thus, proof of mere absence from the United States was held to establish the fact that “non-residence” had been established and the statute was satisfied. After the vicissitudes through which the original exemption section had passed, it is more than a fair assumption that when its amendment was under consideration, the law makers, had they intended mere absence from the United States during the tax year to bring the exemption into play, would have said so in simple non-misunderstand-able language. Yet petitioners’ position here, when reduced to the ultimate, is an argument that mere presence other than" }, { "docid": "11202791", "title": "", "text": "findings of primary, evidentiary or circumstantial facts. It is subject to judicial review and, on such review, the court may substitute its judgment for that of the Board.’ [Citing cases] If the conclusion of the Board be regarded as a determination of a mixed question of law and fact, it has, as we shall presently show, no support in the primary and evidentiary facts. The ultimate determination, therefore, should be overturned, under the doctrine of Helvering v. Rankin, supra [295 U.S. 123, 55 S.Ct. 732, 79 L.Ed. 1343], as a matter of law.” Here, in the Weible case, we have a mixed question of law and fact, so we have the right to review the record, and substitute our findings and conclusions for those of the District Court in the event we find the record warrants such action. We are not bound in situations such as this to the “clearly erroneous” rule, and we accept the proposition presented by appellants, that in our review of this case we are not restricted by the findings and conclusions of the District Court. The Fourth Circuit, in Commissioner of Internal Revenue v. Swent, 1946, 155 F.2d 513, 514, passed upon the question of whether the taxpayer, under the facts of the case, was a bona fide nonresident of the United States for more than six months during the taxable year, under the original Section 116 prior to the 1942 amendment. Said the court: “The answer to this question depends upon the interpretation or construction of the words just quoted above [referring to Section 116]. That, we think, is a question of law, so that we are not bound to follow the decision of the Tax Court under Dobson v. Commissioner, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248. Said Mr. Justice Jackson in that case (320 U.S. at page 501, 64 S.Ct. at page 246): ‘It is difficult to lay down rules as to what should or should not be reviewed in tax cases except in terms so general that their effectiveness in a particular case will depend largely upon the attitude" }, { "docid": "8730417", "title": "", "text": "gain or loss could be recognized because all the steps talcen here effected an exchange of stock in one corporation for stock of another pursuant to a plan of reorganization. In Dobson v. Commissioner of Internal Revenue, 320 U.S. 489, 64 S.Ct. 239, 247, the Supreme Court said: “ * * * Whether an apparently integrated transaction shall be broken up into several steps and whether what apparently are several steps shall be synthesized into one whole transaction is frequently a necessary determination in deciding tax consequences. Where no statute or regulation controls, the Tax Court's selection of the course to follow is no wore renewable than any other question of fact.\" [Emphasis added] In line with the principle of the cited case, and in view of the fact that there is “warrant in the record” to support the findings of the Tax Court, the judgment appealed from is affirmed. At page 501 of 320 U.S., at page 246 of 64 S.Ct., in the opinion quoted from, the following occurs: “ * * * Its [Tax Court’s] decision, of course, must have ‘warrant in the record’ and a reasonable basis in the law. Rut ‘the judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body.’ * » *» qy,e administrative body here was the Tax Court." } ]

[ { "docid": "22321170", "title": "", "text": "prosecutorial powers of government. Furthermore, even if we were prepared to extend the scope of the Excessive Fines Clause beyond the context where the Framers clearly intended it to apply, we would not be persuaded to do so with respect to cases of punitive damages awards in private civil cases, because they are too far afield from the concerns that animate the Eighth Amendment. We think it clear, from both the language of the Excessive Fines Clause and the nature of our constitutional framework, that the Eighth Amendment places limits on the steps a government may take against an individual, whether it be keeping him in prison, imposing excessive monetary sanctions, or using cruel and unusual punishments. The fact that punitive damages are imposed through the aegis of courts and serve to advance governmental interests is insufficient to support the step petitioners ask us to take. While we agree with petitioners that punitive damages advance the interests of punishment and deterrence, which are also among the interests advanced by the criminal law, we fail to see how this overlap requires us to apply the Excessive Fines Clause in a case between private parties. Here the government of Vermont has not taken a positive step to punish, as it most obviously does in the criminal context, nor has it used the civil courts to extract large payments or forfeitures for the purpose of raising revenue or disabling some individual. We shall not ignore the language of the Exces sive Fines Clause, or its history, or the theory on which it is based, in order to apply it to punitive damages. Ill Petitioners also ask us to review the punitive damages award to determine whether it is excessive under the Due Process Clause of the Fourteenth Amendment. The parties agree that due process imposes some limits on jury awards of punitive damages, and it is not disputed that a jury award may not be upheld if it was the product of bias or passion, or if it was reached in proceedings lacking the basic elements of fundamental fairness. But petitioners make no" } ]

[ { "docid": "8737096", "title": "", "text": "S.Ct. 2801, 125 L.Ed.2d 488 (1993) (concluding that the civil forfeiture of property used in a drug crime constituted punishment and was therefore subject to the Excessive Fines Clause). In Austin, the Supreme Court stated that the Excessive Fines Clause “limits the government’s power to extract payments, whether in cash or in kind, ‘as punishment for some offense.’ ” Id. at 609-10, 113 S.Ct. 2801 (quoting Browning-Ferris Indus, v. Kelco Disposal, Inc., 492 U.S. 257, 265, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989)). The Court then explained that civil sanctions can constitute punishment, and therefore are subject to the limitations of the Excessive Fines Clause, if they serve, at least in part, retributive or deterrent purposes. See id. at 610, 113 S.Ct. 2801. The Court ultimately concluded that the civil forfeiture under 21 U.S.C. § 881(a) of a mobile home and an autobody shop that were used in a drug crime constituted a “payment to a sovereign as punishment for some offense” and was thus subject to the limitations of the Excessive Fines Clause. Id. at 622, 113 S.Ct. 2801. The fines imposed by the City under the ordinances at issue here are not solely remedial. In fact, they appear to serve little or no remedial purpose; they do not compensate the City for any loss sustained as a result of the violations. Rather, it is clear that the fines, at least in part, serve the punitive purpose of deterring owners from allowing their vehicles to be used for prohibited purposes. At oral argument, the City emphasized that the ordinances were enacted in an effort to curb illegal drug and firearm activity by supplementing the criminal laws with a civil deterrent that does not require the government to meet the high burden of proof required for a criminal conviction. Because the fines, at least in part, serve this deterrent purpose, they constitute payment “as punishment for some offense.” Id. at 610, 113 S.Ct. 2801. Therefore, we must determine whether they violate the Excessive Fines Clause. The Supreme Court of the United States has adopted a “gross disproportionality” test to determine" }, { "docid": "22327359", "title": "", "text": "responsibility for her actions, and the fact that she experienced depression only after she was confronted with evidence of her crimes and exposed to the possibility of imprisonment. At one point, the Court sought the government’s views on a below-range sentence of three years, prompting the government to object that such a sentence would give Lessner “an implicit recognition that she accepted responsibility, because that’s what a 36-month sentence is, the bottom of the guideline range that would have applied to the defendant had she accepted responsibility.” (Id. at 471-72.) That we might have exercised our sentencing discretion differently, and we do not suggest that we would have done so, is irrelevant. See Cooper, 437 F.3d at 330. The Court did not err in concluding that the circumstances of this case did not mandate a sentence below the bottom of the properly-calculated Guidelines range. F. Whether the Restitution Order Violated the Excessive Fines Clause of the Eighth Amendment Lessner argues, finally, that the restitution order violated the Excessive Fines Clause of the Eighth Amendment because the award was grossly disproportionate to the gravity of her offense. She failed to raise this argument before the District Court, so again we review for plain error. See United States v. Campbell, 295 F.3d 398, 404 (3d Cir.2002); see also United States v. King, 414 F.3d 1329, 1330 (11th Cir.2005). The Eighth Amendment to the United States Constitution provides as follows: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const, amend. VIII. The prohibition on excessive fines “limits the government’s power to extract payments, whether in cash or in kind, ‘as punishment for some offense.’ ” United States v. Bajakajian, 524 U.S. 321, 328, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998) (quoting Austin v. United States, 509 U.S. 602, 609-10, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) (emphasis deleted)). In the context of punitive forfeitures, the Supreme Court has held that an Eighth Amendment violation occurs when the forfeiture “is grossly disproportional to the gravity of a defendant’s offense.” Id. at 334, 118 S.Ct. 2028." }, { "docid": "11553638", "title": "", "text": "on which Kearns filed her answer, and thus the earliest time at which jeopardy could have attached, was March 31, 1992. Because, in this case, “jeopardy attached first in the criminal proceeding, that proceeding did not violate the double jeopardy clause and [the defendant’s] criminal conviction must stand.” See United States v. Faber, 57 F.3d 873, 875 (9th Cir.1995). IV. EIGHTH AMENDMENT CLAIM Kearns argues that she suffered a forfeiture in the civil proceeding and that the forfeiture, in conjunction with her criminal fine, violates the Excessive Fines Clause. Because she did not raise this issue before the district court, we review the claim for plain error. See United States v. Caperell, 938 F.2d 975, 980 & n. 5 (9th Cir.1991) (legal issue not raised during sentencing hearing is reviewed for plain error). The Excessive Fines Clause applies to civil in rem forfeitures under all three statutes invoked in the forfeiture complaint in this case (21 U.S.C. § 881(a)(6) and (a)(7), and 18 U.S.C. § 981(a)(1)(A)). See Austin v. United States, —- U.S. -, 113 S.Ct. 2801, 2812, 125 L.Ed.2d 488 (1993); United States v. $405,089.23 U.S. Currency, 33 F.3d 1210, 1219 (1994), amended, 56 F.3d 41 (9th Cir.1995). Because the forfeiture complaint was dismissed pursuant to a voluntary agreement between the parties, whereby all the properties were returned to Kearns, no forfeiture was actually imposed. See Black’s Law Dictionary 584r-85 (5th ed. 1979) (“forfeiture” is defined, inter alia, as the “[IJoss of some right or property as a penalty for some illegal act”) (emphasis added). We reject Kearns’ attempt to characterize as a “forfeiture” her subsequent loss of two of the properties in foreclosure sales. Kearns presented no evidence that her loss was caused by the government’s seizure. Moreover, even if she had, that loss does not constitute a “forfeiture” or “punishment” that would trigger the protections of the Excessive Fines Clause. See Austin, — U.S. at-, 113 S.Ct. at 2805 (“The Excessive Fines Clause limits the Government’s power to extract payments, whether in cash or in kind, ‘as punishment for some offense.’”) (first emphasis added) (quoting Browning-Ferris Indus." }, { "docid": "20272682", "title": "", "text": "Magna Car-ta’s prohibition on excessive amercements [a common criminal sanction]. Specifically, Blackstone says ‘no man shall have a larger amercement imposed upon him, than his circumstances or personal estate will bear: saving to ... the trader his merchandize.’ ”) (citing 4 William Blackstone, Commentaries *372). Thus, at the time of the Framing, the Founders understood “ ‘fine’ ... to mean a payment to a sovereign as punishment for some offense.” Bajakajian, 524 U.S. at 327, 118 S.Ct. 2028 (internal quotation marks & citation omitted); see also Austin v. United States, 509 U.S. 602, 609, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) (“The purpose of the Eighth Amendment ... was to limit the government’s power to punish.”). In turn, the Excessive Fines Clause restricts “the Government’s power to extract payments, whether in cash or in kind, as punishment for some offense.” Bajakajian, 524 U.S. at 328, 118 S.Ct. 2028 (internal quotation marks & citation omitted). The Eighth Amendment is applicable if the forfeiture constitutes a “fine” and is violated only if that fine is “excessive.” See Tillman, 221 F.3d at 420. While the Excessive Fines Clause was initially applied only to in personam actions, the Supreme Court expanded its applicability to civil in rem forfeiture proceedings if the forfeiture constituted, in part, punishment. See Austin, 509 U.S. at 610, 113 S.Ct. 2801 (noting that sanctions can serve both a remedial and punitive purpose). This holding was narrowed somewhat by the Supreme Court in Bajakajian, wherein the Court noted that traditional in rem forfeitures were not punitive and would therefore fall outside of the Eighth Amendment’s protections. 524 U.S. at 331, 118 S.Ct. 2028. The Court further noted, however, that “[bjecause some recent federal forfeiture laws have blurred the traditional distinction between civil in rem and criminal in personam forfeiture, we have held that a modern statutory forfeiture is a ‘fine’ for Eighth Amendment purposes if it constitutes punishment even in part, regardless of whether the proceeding is styled in rem or in personam.” Id. at 331 n. 6, 118 S.Ct. 2028. Thus, while the Court has classified § 924(d)(1) as remedial" }, { "docid": "518584", "title": "", "text": "release from jail. The Salerno court reiterated that \"[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited excep tion.” Salerno, 481 U.S. at 755, 107 S.Ct. 2095. We have also recognized that interest, stating that ''[d]ue to weighty liberty interests, the typical pretrial detainee is rarely detained prior to trial.” Hamilton v. Lyons, 74 F.3d 99, 105 (5th Cir.1996). Thus, the need for a compelling purpose to restrict such release implies that an individual maintains a strong liberty interest. . 2 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure, § 15.6, at 622 (1999) (arguing for the incorporation of this clause “because it is intertwined with the other two clauses of the Eighth Amendment and the Supreme Court has already regulated the imposition of fines on indigents through the equal protection clause of the Fourteenth Amendment”). . See Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 284, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989) (O’Connor, J. concurring in part, dissenting in part) (urging that the \"excessive fines” clause should apply to the states). . Ingraham v. Wright, 430 U.S. 651, 671 n. 40, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). . Id. . The Court has found that the Excessive Fines Clause \"limits the government’s power to extract payments, whether in cash or in kind, as punishment for some offense.” Austin v. United States, 509 U.S. 602, 609-10, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993)(internal quotation marks omitted) (emphasis in original). Thus, whether the clause applies depends on whether it is possible to describe the fees imposed as punishment. See United States v. Bajakajian, 524 U.S. 321, 328, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998) (finding that forfeitures are fines \"if they constitute punishment for an offense”). . 404 U.S. 357, 92 S.Ct. 479, 30 L.Ed.2d 502 (1971). . Id. at 359-61, 92 S.Ct. 479. . Id. at 365, 92 S.Ct. 479. . Id. at 367-68, 92 S.Ct. 479. When the state takes only 10% instead of the entire 100%" }, { "docid": "7316740", "title": "", "text": "piggy-backs on top of a federal prosecution. These arguments, however, do not come close to meeting the “substantial burden” on Hopkins to show that Oklahoma’s attempt to forfeit his pension was “so dominated” by the actions of federal prosecutors that Oklahoma officials were not acting of their own volition. See Raymer, 941 F.2d at 1037. Indeed, the only evidence in the record indicating contact between federal prosecutors and Oklahoma pension officials is a letter from the United States Attorney for the Northern District of Texas notifying OPERS that Hopkins had been convicted in federal court. As a result, we conclude that there is insufficient evi dence to sustain a claim of “sham prosecution” in Hopkins’ ease. Thus, the dual-sovereigns doctrine applies here, and Oklahoma’s forfeiture of Hopkins’ .pension is not barred by the Double Jeopardy Clause. B. Excessive fines. The second argument Hopkins raises against the forfeiture of his pension benefits is his claim that Oklahoma’s pension forfeiture statute imposes an excessive fine on him in violation of the Eighth Amendment. This amendment reads, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const, amend. VIII. The Supreme Court has explained that the Excessive Fines Clause “was intended to limit only those fines directly imposed by, and payable to, the government.” Browning-Ferris Indus. of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 268, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989). Furthermore, at the time of the drafting and ratification of the Eighth Amendment, the understanding of the term “fine” included “a payment to a sovereign as punishment for some offense.” Id. at 265, 109 S.Ct. 2909. Implicit in this interpretation of the Excessive Fines Clause is the notion that it applies only when the payment to the government involves turning over “property” of some kind that once belonged to the defendant. Cf. Austin v. United States, 509 U.S. 602, 604, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) (applying the Excessive Fines Clause to in rem forfeitures of a drug defendant’s mobile home and business). In this ease, therefore, we must decide" }, { "docid": "3850544", "title": "", "text": "not countered with evidence of his own that Defendants had any kind of “retaliatory motive” with regard to his request for a transcript amendment. Thus, Defendants’ motion for summary judgment is granted as to the retaliation claim. F. Eighth Amendment Excessive Fine Claim Against the Current and Former Rectors of the University, the President of the University, and Members of the Board of Visitors Goodreau’s claim under the Excessive Fines Clause of the Eighth Amendment is based on the premise that the degree revocation in this case is analogous to a civil forfeiture. Because that analogy misses the mark, Defendants’ motion for summary judgment on the Excessive Fines issue will be granted. In Austin v. United States, the Supreme Court explained that the “Excessive Fines Clause limits the government’s power to extract payments, whether in cash or in kind, ‘as punishment for some offense.’ ” 509 U.S. 602, 609-10, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) (quoting Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 265, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989)). The Austin Court went on to hold that a civil forfeiture can violate the Excessive Fines Clause as long as “it can only be explained as serving in part to punish.” Id. at 610, 113 S.Ct. 2801. Once it has been established that the civil forfeiture is a punishment and therefore within the scope of the Eighth Amendment, the next inquiry is to determine whether the fíne is excessive. According to the Supreme Court, “a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant’s offense.” United States v. Bajakajian, 524 U.S. 321, 334, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998). Goodreau begins his argument in support of his Excessive Fines claim with the unsupported statement that “the revocation of [his] degree was the equivalent of a civil forfeiture” and quickly proceeds to a discussion of whether the punishment was in proportion to his offense. However, an examination of Goodreau’s proportionality argument reveals a flaw in the analogy between his degree revocation and the civil" }, { "docid": "7254235", "title": "", "text": "to constitute a gross abuse of governmental authority”). The City’s actions do not rise to the “ ‘conscience-shocking level’ that would be necessary to support a claim of denial of substantive due process.” Bryant, 404 F.3d at 135 (quoting County of Sacramento v. Lewis, 523 U.S. 833, 849, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)). The City expends resources and exposes itself to potential liability when conducting auction sales. It retains a percentage of the sales price to cover overhead and demands a release and indemnification to insulate it self from liability. Regardless of whether or not these procedures are permissible pursuant to other constitutional provisions, they do not exhibit the type of arbitrary abuse of government authority that would subject the City to liability stemming from the substantive due process clause. See Natale, 170 F.3d at 263. c. Excessive Fines Ford Credit maintains that the 10% deduction amounts to an unconstitutionally excessive fíne. The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor excessive fines imposed.... ” U.S. Const, amend. VIII. The Supreme Court has interpreted the Excessive Fines Clause to “limit[ ] the government’s power to extract payments, whether in cash or in kind, ‘as punishment for some offense.’ ” Austin v. United States, 509 U.S. 602, 609-10, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) (emphasis deleted and citation omitted). Forfeitures are considered fines if they “constitute punishment for an offense.” United States v. Bajakajian, 524 U.S. 321, 328, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998). If punitive, a forfeiture may only be in an amount that bears “some relationship to the gravity of the offense that it is designed to punish.” Id. at 334, 118 S.Ct. 2028 (citing Austin, 509 U.S. at 622-23, 113 S.Ct. 2801, and Alexander v. United States, 509 U.S. 544, 559, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993)). A punitive forfeiture may not be “grossly disproportional to the gravity of the defendant’s offense.” Id. Here the Court need not gauge the proportionality of the 10% deduction, because it is plainly not punitive and therefore not subject to Eighth Amendment analysis. Cf." }, { "docid": "3850543", "title": "", "text": "have sought to revoke his degree.” This argument has some basis in the language of retaliation case law. See Huang v. Board of Governors, 902 F.2d 1134, 1140 (4th Cir.1990) (stating that “claimant must show that ‘but for’ the protected expression the employer would not have taken the alleged retaliatory action”) (citations omitted). However, Goodreau’s argument ignores the essence of the causation requirement, for the cases explain that the protected conduct must be the “but for” cause of the defendant’s “retaliatory motive.” Huang, 902 F.2d at 1141 (stating that the defendant’s adverse action “was infected with a retaliatory motive traceable to” the plaintiffs protected speech); see also Babcock v. White, 102 F.3d 267, 275 (7th Cir.1996) (discussing “retaliatory motive”). In other words, the plaintiff must show that the defendant sought to punish him for engaging in the protected conduct. Here, Defendants have put forth evidence that they recommended that Goodreau’s degree be revoked not because he requested an amendment to his transcript, but because he had been found guilty of an honor offense. Plaintiff has not countered with evidence of his own that Defendants had any kind of “retaliatory motive” with regard to his request for a transcript amendment. Thus, Defendants’ motion for summary judgment is granted as to the retaliation claim. F. Eighth Amendment Excessive Fine Claim Against the Current and Former Rectors of the University, the President of the University, and Members of the Board of Visitors Goodreau’s claim under the Excessive Fines Clause of the Eighth Amendment is based on the premise that the degree revocation in this case is analogous to a civil forfeiture. Because that analogy misses the mark, Defendants’ motion for summary judgment on the Excessive Fines issue will be granted. In Austin v. United States, the Supreme Court explained that the “Excessive Fines Clause limits the government’s power to extract payments, whether in cash or in kind, ‘as punishment for some offense.’ ” 509 U.S. 602, 609-10, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) (quoting Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 265, 109 S.Ct. 2909, 106 L.Ed.2d" }, { "docid": "20272681", "title": "", "text": "subject to forfeiture because they were “involved in” Cheeseman’s knowing 18 U.S.C. § 922(g)(3) violation. B. Excessive Fines Claim Having concluded that § 924(d)(1) permits forfeiture of Cheeseman’s firearms and ammunition, we must determine whether that forfeiture violates the Eighth Amendment’s prohibition on excessive fines. 1. History of the Excessive Fines Clause The Eighth Amendment provides that: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const, amend. VIII. There was little debate surrounding the adoption of the Eighth Amendment and no discussion regarding the inclusion within the Amendment of the Excessive Fines Clause. See Tillman v. Lebanon County Corr. Facility, 221 F.3d 410, 420 n. 9 (3d Cir.2000). Still, the Excessive Fines Clause traces its roots as far back as the Magna Carta. See United States v. Premises Known as RR No. 1 Box 224, Dalton, Scott Twp. & North Abington Twp., Lackawanna, Pa., 14 F.3d 864, 875 n. 12 (3d Cir.1994) (“Blackstone says that the reasonableness of a fine must be determined by reference to Magna Car-ta’s prohibition on excessive amercements [a common criminal sanction]. Specifically, Blackstone says ‘no man shall have a larger amercement imposed upon him, than his circumstances or personal estate will bear: saving to ... the trader his merchandize.’ ”) (citing 4 William Blackstone, Commentaries *372). Thus, at the time of the Framing, the Founders understood “ ‘fine’ ... to mean a payment to a sovereign as punishment for some offense.” Bajakajian, 524 U.S. at 327, 118 S.Ct. 2028 (internal quotation marks & citation omitted); see also Austin v. United States, 509 U.S. 602, 609, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) (“The purpose of the Eighth Amendment ... was to limit the government’s power to punish.”). In turn, the Excessive Fines Clause restricts “the Government’s power to extract payments, whether in cash or in kind, as punishment for some offense.” Bajakajian, 524 U.S. at 328, 118 S.Ct. 2028 (internal quotation marks & citation omitted). The Eighth Amendment is applicable if the forfeiture constitutes a “fine” and is violated only if that fine is “excessive.” See" }, { "docid": "14837126", "title": "", "text": "Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Evidence is evaluated in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). B. Excessive Fines Clause The Excessive Fines Clause of the Eighth Amendment provides that “excessive fines [shall not be] imposed.” U.S. Const, amend. VIII. “Fine,” at the time the Constitution was adopted, was understood to mean “ ‘a payment to a sovereign as punishment for some offense.’ ” United States v. Bajakajian, 524 U.S. 321, 327, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998) (quoting Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 265, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989)). “The Excessive Fines Clause thus limits the government’s power to extract payments, whether in cash or in kind, as punishment for some offense.” Austin v. United States, 509 U.S. 602, 609-10, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) (emphasis added) (internal quotation marks omitted). The forfeitures now sought are “fines” under the Excessive Fines Clause. See Bajakajian, 524 U.S. at 328, 118 S.Ct. 2028. They may not be “excessive.” See id. at 334, 118 S.Ct. 2028. In Bajakajian, the government sought criminal forfeiture of the entire $357,144 that Bajakajian had failed to declare in violation of the.currency reporting requirements of section 5316 of title 31 of the United States Code. Id. at 324-25, 118 S.Ct. 2028. The Court held that full forfeiture of the currency would violate the Excessive Fines Clause because “it would be grossly disproportional to the gravity of his offense.” Id. at 324, 118 S.Ct. 2028. The Court first considered whether the forfeiture of the currency was punishment. It concluded that the forfeiture, pursuant to section 982(a)(1) of title 18 of the United States Code, constitutes punishment be cause it can only be imposed on a person who has been convicted of a reporting violation, not upon an innocent owner. Id. at 328, 118 S.Ct. 2028. It rejected the government’s argument that the forfeiture also served remedial purposes, including deterrence, because deterrence “has" }, { "docid": "3950456", "title": "", "text": "106 L.Ed.2d 219 (1989). After engaging in lengthy historical analysis of the Excessive Fines Clause, the Court concluded that “the clause was intended to limit only those fines directly imposed by, and payable to, the government.” Id. (emphasis added). More recently, the Court considered whether the Excessive Fines Clause applied to in rem civil forfeiture proceedings. Austin v. United States, 509 U.S. 602, 606, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993). While the Court concluded that the Excessive Fines Clause was not limited to criminal cases, it emphasized that the clause only limited “the government’s power to extract payments, whether in cash or in kind, ‘as punishment for some offense.’ ” Id. at 609-610, 113 S.Ct. 2801 (emphasis added); see also, Hopkins v. Oklahoma Public Employees Retirement System, 150 F.3d 1155, 1162 (10th Cir.1998) (noting that “[i]mplicit in [the Supreme Court’s] interpretation of the Excessive Fines Clause is the notion that it applies only when the payment to the government involves turning over ‘property’ of some kind that once belonged to the defendant”). Plaintiffs have offered no authority for the notion that the Excessive Fines Clause applies to non-forfeiture civil cases in which the penalty is closure of a business rather than payment of fines to the government. Therefore, Plaintiffs’ Eighth Amendment claim is without merit and will be dismissed. Accordingly, IT IS ORDERED that Plaintiffs’ Motion for a Preliminary Injunction (Doc. 2) is denied. IT IS FURTHER ORDERED that Plaintiffs’ Motion to Exceed the Page Limit (Doc. 3) is granted. IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss (Doc. 6) is denied as moot. IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss First-Amend ed Complaint (Doc. 29) is granted in part and denied in part. IT IS FURTHER ORDERED that Plaintiffs’ Motion for Closed Hearing as to Certain Witnesses (Doc. 11), which was verbally denied at a hearing, is denied for the record. IT IS FURTHER ORDERED that Plaintiffs’ Motion for Expedited Hearing on Plaintiffs’ Motion for Protective Order and Order for Closed Hearing as to Certain Witnesses (Doc. 12), which was verbally granted at a hearing," }, { "docid": "7316741", "title": "", "text": "bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const, amend. VIII. The Supreme Court has explained that the Excessive Fines Clause “was intended to limit only those fines directly imposed by, and payable to, the government.” Browning-Ferris Indus. of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 268, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989). Furthermore, at the time of the drafting and ratification of the Eighth Amendment, the understanding of the term “fine” included “a payment to a sovereign as punishment for some offense.” Id. at 265, 109 S.Ct. 2909. Implicit in this interpretation of the Excessive Fines Clause is the notion that it applies only when the payment to the government involves turning over “property” of some kind that once belonged to the defendant. Cf. Austin v. United States, 509 U.S. 602, 604, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) (applying the Excessive Fines Clause to in rem forfeitures of a drug defendant’s mobile home and business). In this ease, therefore, we must decide the threshold question of whether the forfeiture of Hopkins’ pension amounted to a payment of “property” by him to the state of Oklahoma. The district court ruled that under Oklahoma law, Hopkins had no “property” right in his pension benefits — even though he had already begun-to receive the pension benefits — because Hopkins’ right to his pension always was contingent on maintaining honorable service during his tenure in office. See Woods v. City of Lawton, 845 P.2d 880, 882-83 (Okla.1992); see also Okla. Stat. tit. 51, § 24.1(A) (forfeiting a public employee’s pension benefit upon the employee’s felony conviction for “a felony or any offense involving a violation of his official oath”). When Hopkins accepted a bribe in connection with a matter then being considered by the Corporation Commission, he breached his duty of honorable service. See Okla. Const. art. 9, § 17 (specifying that the oath of office for each commissioner must include a declaration that the commission has no financial interest in any matters that come before the Commission). As a result," }, { "docid": "3950455", "title": "", "text": "critical public health concern. Doe v. Minneapolis, 898 F.2d at 619; New Saint Mark’s Baths, 130 Misc.2d at 912-914, 497 N.Y.S.2d 979. Plaintiffs have not met then. burden of establishing that § 23-54 fails to substantially advance a legitimate public purpose. Accordingly, the ordinance will not be enjoined on the basis of their takings claim. Because the Court relied on the factual record in reaching this conclusion, Defendant’s Motion to Dismiss is denied. The Eighth Amendment Plaintiffs also assert that § 23-54 constitutes an “excessive fine” in violation of the Eighth Amendment because businesses found to be operating in violation of the ordinance are subject to closure, a remedy Plaintiffs claim is excessive. The Supreme Court did not consider an application of the Excessive Fines Clause until 1989, when it rejected a claim that an award of punitive damages in a civil trial between private parties constituted an excessive fine within the meaning of the Eighth Amendment. Browning-Ferris Industries of Vermont, Inc., et al. v. Kelco Disposal, Inc., 492 U.S. 257, 268, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989). After engaging in lengthy historical analysis of the Excessive Fines Clause, the Court concluded that “the clause was intended to limit only those fines directly imposed by, and payable to, the government.” Id. (emphasis added). More recently, the Court considered whether the Excessive Fines Clause applied to in rem civil forfeiture proceedings. Austin v. United States, 509 U.S. 602, 606, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993). While the Court concluded that the Excessive Fines Clause was not limited to criminal cases, it emphasized that the clause only limited “the government’s power to extract payments, whether in cash or in kind, ‘as punishment for some offense.’ ” Id. at 609-610, 113 S.Ct. 2801 (emphasis added); see also, Hopkins v. Oklahoma Public Employees Retirement System, 150 F.3d 1155, 1162 (10th Cir.1998) (noting that “[i]mplicit in [the Supreme Court’s] interpretation of the Excessive Fines Clause is the notion that it applies only when the payment to the government involves turning over ‘property’ of some kind that once belonged to the defendant”). Plaintiffs have" }, { "docid": "11553639", "title": "", "text": "S.Ct. 2801, 2812, 125 L.Ed.2d 488 (1993); United States v. $405,089.23 U.S. Currency, 33 F.3d 1210, 1219 (1994), amended, 56 F.3d 41 (9th Cir.1995). Because the forfeiture complaint was dismissed pursuant to a voluntary agreement between the parties, whereby all the properties were returned to Kearns, no forfeiture was actually imposed. See Black’s Law Dictionary 584r-85 (5th ed. 1979) (“forfeiture” is defined, inter alia, as the “[IJoss of some right or property as a penalty for some illegal act”) (emphasis added). We reject Kearns’ attempt to characterize as a “forfeiture” her subsequent loss of two of the properties in foreclosure sales. Kearns presented no evidence that her loss was caused by the government’s seizure. Moreover, even if she had, that loss does not constitute a “forfeiture” or “punishment” that would trigger the protections of the Excessive Fines Clause. See Austin, — U.S. at-, 113 S.Ct. at 2805 (“The Excessive Fines Clause limits the Government’s power to extract payments, whether in cash or in kind, ‘as punishment for some offense.’”) (first emphasis added) (quoting Browning-Ferris Indus. v. Kelco Disposal, Inc., 492 U.S. 257, 265, 109 S.Ct. 2909, 2915, 106 L.Ed.2d 219 (1989)); id. at-, 113 S.Ct. at 2812-13 (Scalia, J., concurring in part and concurring in the judgment) (“the term ‘fine’ [as used in the Eighth Amendment] was ‘understood to mean a payment to a sovereign as punishment for some offense’”) (emphasis added) (quoting Browning-Ferris Indus., 492 U.S. at 265, 109 S.Ct. at 2915). We conclude that Kearns’ civil forfeiture proceeding did not result in any forfeiture. Accordingly, we hold that the Excessive Fines Clause was never implicated and that the district court did not plainly err by fail ing to consider the alleged forfeiture in imposing Kearns’ criminal sentence. CONCLUSION For the foregoing reasons, we reverse Kearns’ conviction on count II due to insufficient evidence. We reject Kearns’ other points of error and affirm her conviction and sentence as to count I. AFFIRMED IN PART AND REVERSED IN PART. . Kearns concedes that the evidence, viewed in the light most favorable to the government, supports a finding that Lynch and" }, { "docid": "5817247", "title": "", "text": "court erred in requiring forfeiture of only $15,000 because the entire $357,144 at issue should have been forfeited. In the alternative, the government requests forfeiture of $170,000, the amount of currency which Bajakajian asked a friend to lie about to Customs agents. The forfeiture statute relevant to this litigation, 18 U.S.C. § 982(a)(1), provides in pertinent part: “The court, in imposing sentence on a person convicted of an offense in violation of section 5313(a), 5316 or 5324 of title 31 ..., shall order that the person forfeit to the United States any property, real or personal, involved in such offense, or any property traceable to such property.” Therefore, pursuant to 18 U.S.C. § 982(a)(1), the entire $357,144 at issue in the present ease is potentially forfeitable. However, a forfeiture is unconstitutional unless it survives scrutiny under the Excessive Fines Clause of the Eighth Amendment. “The Excessive Fines Clause limits the Government’s power to extract payments, whether in cash or in kind, ‘as punishment for some offense.’ ” Austin v. United States, 509 U.S. 602, 609-10, 113 S.Ct. 2801, 2805, 125 L.Ed.2d 488 (1993) (citation omitted). See also Alexander v. United States, 509 U.S. 544, 557-60, 113 S.Ct. 2766, 2775-76, 125 L.Ed.2d 441 (1993) (holding that criminal forfeiture is a form of monetary punishment subject to the Eight Amendment’s Excessive Fines Clause); United States v. Sarbello, 985 F.2d 716, 717-18 (3d Cir.1993) (holding that a court may reduce an otherwise mandatory 100% statutory criminal forfeiture on the basis of the Excessive Fines Clause of the Eighth Amendment). Therefore, forfeiture in the present ease must be subjected to analysis under the Excessive Fines Clause. The Supreme Court, in Austin, declined to enumerate the factors to be considered in determining whether a forfeiture violates the Excessive Fines Clause. Austin, 509 U.S. at 621-23, 113 S.Ct. at 2812. We recently addressed this issue and established a two-pronged test for determining whether a forfeiture is -unconstitutionally excessive under the Eighth Amendment. United States v. Real Property Located in El Dorado County, 59 F.3d 974, 982 (9th Cir.1995). Pursuant to this court’s Excessive Fines Clause test," }, { "docid": "7254236", "title": "", "text": "Supreme Court has interpreted the Excessive Fines Clause to “limit[ ] the government’s power to extract payments, whether in cash or in kind, ‘as punishment for some offense.’ ” Austin v. United States, 509 U.S. 602, 609-10, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) (emphasis deleted and citation omitted). Forfeitures are considered fines if they “constitute punishment for an offense.” United States v. Bajakajian, 524 U.S. 321, 328, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998). If punitive, a forfeiture may only be in an amount that bears “some relationship to the gravity of the offense that it is designed to punish.” Id. at 334, 118 S.Ct. 2028 (citing Austin, 509 U.S. at 622-23, 113 S.Ct. 2801, and Alexander v. United States, 509 U.S. 544, 559, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993)). A punitive forfeiture may not be “grossly disproportional to the gravity of the defendant’s offense.” Id. Here the Court need not gauge the proportionality of the 10% deduction, because it is plainly not punitive and therefore not subject to Eighth Amendment analysis. Cf. id. at 328-29 & n. 4, 118 S.Ct. 2028. The deduction itself is remedial, as it is imposed to compensate the City for administrative expenses incurred in the disposition of the vehicles. See id. (citing One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972) (per curiam)). The deduction is applied universally, regardless of whether any given lienholder had responsibility for the allegedly illicit activity that occasioned the forfeiture. Cf. Austin, 509 U.S. at 619, 113 S.Ct. 2801. Because plaintiff has failed to set forth any evidence suggesting that the 10% deduction is punitive in nature, it is not susceptible to Eighth Amendment analysis. See United States v. An Antique Platter of Gold, 184 F.3d 131, 140 (2d Cir.1999) (noting that nonpunitive forfeitures are “outside the scope of the Excessive Fines Clause”). C. Ford Credit’s Takings Claims are Unripe Ford Credit has advanced several of its claims pursuant to the Takings Clause of the Fifth Amendment. The Takings Clause, which applies to the states through the Fourteenth" }, { "docid": "14837125", "title": "", "text": "in monetary instruments), § 5317 (providing for forfeiture of funds associated with a violation of the currency reporting law) and § 5332 (criminalizing the smuggling of non-reported currency in excess of $10,000 and providing for forfeiture of funds associated with such a violation). A summons and warrant for arrest of the articles in rem was issued pursuant to Rule C(3) of the Supplemental Rules for Certain Admiralty and Maritime Claims of the Federal Rules of Civil Procedure. Notice of the action was published. Individually served were approximately eighty putative claimants. Some ninety claims were filed. Ali Sher Khan filed a claim for $87,000 that was amended to $67,000. Akbar Ali Khan filed a claim for $19,300. Fazal Subhan filed a claim that was amended to $10,000. III. Law A. Summary Judgment Standard To prevail on a motion for summary judgment, the moving party must show that there is “no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Evidence is evaluated in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). B. Excessive Fines Clause The Excessive Fines Clause of the Eighth Amendment provides that “excessive fines [shall not be] imposed.” U.S. Const, amend. VIII. “Fine,” at the time the Constitution was adopted, was understood to mean “ ‘a payment to a sovereign as punishment for some offense.’ ” United States v. Bajakajian, 524 U.S. 321, 327, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998) (quoting Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 265, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989)). “The Excessive Fines Clause thus limits the government’s power to extract payments, whether in cash or in kind, as punishment for some offense.” Austin v. United States, 509 U.S. 602, 609-10, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) (emphasis added) (internal quotation marks omitted). The forfeitures now sought are “fines” under" }, { "docid": "9274940", "title": "", "text": "at 767, 130 S.Ct. 3020 (internal quotation marks omitted; emphasis deleted). Incorporated Bill of Rights guarantees are \"enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.\" Id., at 765, 130 S.Ct. 3020 (internal quotation marks omitted). Thus, if a Bill of Rights protection is incorporated, there is no daylight between the federal and state conduct it prohibits or requires. B Under the Eighth Amendment, \"[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.\" Taken together, these Clauses place \"parallel limitations\" on \"the power of those entrusted with the criminal-law function of government.\" Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc. , 492 U.S. 257, 263, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989) (quoting Ingraham v. Wright , 430 U.S. 651, 664, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) ). Directly at issue here is the phrase \"nor excessive fines imposed,\" which \"limits the government's power to extract payments, whether in cash or in kind, 'as punishment for some offense.' \" United States v. Bajakajian , 524 U.S. 321, 327-328, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998) (quoting Austin v. United States , 509 U.S. 602, 609-610, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) ). The Fourteenth Amendment, we hold, incorporates this protection. The Excessive Fines Clause traces its venerable lineage back to at least 1215, when Magna Carta guaranteed that \"[a] Free-man shall not be amerced for a small fault, but after the manner of the fault; and for a great fault after the greatness thereof, saving to him his contenement ....\" § 20, 9 Hen. III, ch. 14, in 1 Eng. Stat. at Large 5 (1225). As relevant here, Magna Carta required that economic sanctions \"be proportioned to the wrong\" and \"not be so large as to deprive [an offender] of his livelihood.\" Browning-Ferris , 492 U.S., at 271, 109 S.Ct. 2909. See also 4 W. Blackstone, Commentaries on the Laws of England 372 (1769) (\"[N]o man shall have a larger amercement imposed upon him, than his circumstances or" }, { "docid": "8737095", "title": "", "text": "they could not demonstrate, as required by City of Los Angeles v. Lyons, 461 U.S. 95, 105, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), impending injury similar to the one already allegedly suffered. Even if the class had been certified, continued the court, the plaintiffs met none of the three threshold requirements for a preliminary injunction: some likelihood of success on the merits, no adequate remedy at law, and irreparable harm. II DISCUSSION A. Excessive Fines The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const, amend. VIII. The parties have not disputed that the Eighth Amendment’s Excessive Fines Clause applies to the civil penal ties at issue in this case. Indeed, the Supreme Court has interpreted the Excessive Fines Clause to apply to civil fines. See Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 495, 139 L.Ed.2d 450 (1997) (stating that “[t]he Eighth Amendment protects against excessive civil fines, including forfeitures”); Austin v. United States, 509 U.S. 602, 609, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) (concluding that the civil forfeiture of property used in a drug crime constituted punishment and was therefore subject to the Excessive Fines Clause). In Austin, the Supreme Court stated that the Excessive Fines Clause “limits the government’s power to extract payments, whether in cash or in kind, ‘as punishment for some offense.’ ” Id. at 609-10, 113 S.Ct. 2801 (quoting Browning-Ferris Indus, v. Kelco Disposal, Inc., 492 U.S. 257, 265, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989)). The Court then explained that civil sanctions can constitute punishment, and therefore are subject to the limitations of the Excessive Fines Clause, if they serve, at least in part, retributive or deterrent purposes. See id. at 610, 113 S.Ct. 2801. The Court ultimately concluded that the civil forfeiture under 21 U.S.C. § 881(a) of a mobile home and an autobody shop that were used in a drug crime constituted a “payment to a sovereign as punishment for some offense” and was thus subject to the limitations of the Excessive Fines Clause. Id." } ]

[ { "docid": "16636470", "title": "", "text": "relevant part: Such Acts, records, and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken. 28 U.S.C. § 1738. Because Indian nations are not referenced in the statute, the question is whether tribes are “territories or possessions” of the United States under the statute. The United States Supreme Court has not ruled on the precise issue and its pronouncements on collateral matters are inconclusive. For example, in United States ex rel. Mackey v. Coxe, 59 U.S. (18 How.) 100, 103-04, 15 L.Ed. 299 (1855), the Court held the Cherokee nation was a territory as that term was used in a federal letters of administration statute. By contrast, in New York ex rel. Kopel v. Bingham, 211 U.S. 468, 474-75, 29 S.Ct. 190, 191-92, 53 L.Ed. 286 (1909), the Court cited with approval Ex Parte Morgan, 20 F. 298, 305 (W.D.Ark.1883) in which the district court held that the Cherokee nation was not a “territory” under the federal extradition statute. State courts have reached varied results, citing either Mackey or Morgan as authority, depending on the outcome. In our view, the decisive factor in determining Congress’s intent was the enactment of subsequent statutes which expressly extended foil faith and credit to certain tribal proceedings: the Indian Land Consolidation Act, 25 U.S.C. §§ 2201-2211 (1988) (extending full faith and credit for certain actions involving trust, restricted or controlled lands), the Maine Indian Claims Settlement Act, 25 U.S.C. § 1725(g) (1980) (requiring the Passamaquoddy Tribe, the Penobscot Nation and the State of Maine to “give full faith and credit to the judicial proceedings of each other”), and the Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901 et seq. (extending full faith and credit to tribal custody proceedings). The Indian Child Welfare Act provides in relevant part: The United States, every State, every territory or possession of the United States, and every Indian" } ]

[ { "docid": "15131130", "title": "", "text": "with the states. And in the name of procedural justice, it will sever the process of federal post-conviction review from the state’s own process of self-review, creating a system in which federal attacks upon state convictions are endless, and endlessly disconnected. V. The proper analysis in this case begins and ends with the recognition that Congress has not conferred upon the federal courts the power assumed here by the majority. The majority’s approach is also disturbing because it violates the clear command of Congress that federal courts must give state court judgments “full faith and credit”: The ... judicial proceedings of any ... State, Territory, or Possession ... shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken. 28 U.S.C. § 1738. The Full Faith and Credit statute “reflects a variety of concerns, including notions of comity, the need to prevent vexatious litigation, and a desire to conserve judicial resources.” Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 84, 104 S.Ct. 892, 898, 79 L.Ed.2d 56 (1984). It requires federal courts, in determining the subsequent effect of a state judgment in federal court, to give the state judgment the same effect as it would have in the rendering state. Id. at 81, 104 S.Ct. at 896. Section 1738 applies to state criminal as well as state civil judgments. Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1981). The Supreme Court has consistently held that the preclusion rules of § 1738 presumptively control unless a coordinate federal statute contains “an express or implied partial repeal” of § 1738. Kremer v. Chemical Constr. Corp., 456 U.S. 461, 468, 102 S.Ct. 1883, 1890, 72 L.Ed.2d 262 (1982); see also Allen, 449 U.S. at 99, 101 S.Ct. at 417. The Court has also noted that an implied repeal is disfavored and will not be recognized unless the intent of Congress is “clear and manifest.” Kremer," }, { "docid": "16636468", "title": "", "text": "the United States. U.S. Const, art. IV, § I, cl. 1; 28 U.S.C. § 1738. The extent to which the United States, or any state, honors the judicial decrees of foreign nations is a matter of choice, governed by “the comity of nations.” Hilton v. Guyot, 159 U.S. 113, 163, 16 S.Ct. 139, 143, 40 L.Ed. 95(1895). Determining comity to be a proper basis for recognizing a tribal court judgment is not a remarkable notion; indeed, both parties agree that it is appropriate. However, Wilson asserts comity only as an alternative analysis, contending that a tribal judgment must be recognized by the United States under 28 U.S.C. § 1738, the implementing legislation of the United States Constitution’s Full Faith and Credit Clause. The Constitution’s Full Faith and Credit Clause provides: Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof U.S. Const, art. IV, § 1. By its terms, the Full Faith and Credit j Clause applies only to the states. Nothing in debates of the Constitutional Convention conj cerning the clause indicates the framers j thought the clause would apply to Indian j tribes. The Constitution is silent about ree-Iognition of tribal judgments, though it specifically addresses other tribal concerns. See U.S. Const, art. I, § 2, cl. 3 (excluding non-taxed Indians from the calculation of repre-Isentative apportionment); art. I, § 8, cl. 3 (providing Congress the power to regulate commerce with the Indian tribes); amend. XIV, § 2 (excluding non-taxed Indians from ! the calculation of representative apportionment). Thus, the Constitution itself does not afford Ml faith and credit to Indian tribal judgments. Initial legislation implementing the full faith and credit clause was passed in 1790. The statute was modified in 1804 to include the extension of full faith and credit to United States territories and possessions. Subsequent technical amendments were made and the current full faith and credit statute reads in" }, { "docid": "23638200", "title": "", "text": "Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979)). Congress has passed legislation which requires federal courts to give preclusive effect to state court judgments. The Constitution’s Full Faith and Credit Clause is implemented by the federal full faith and credit statute, 28 U.S.C. § 1738 (1982). The statute provides in pertinent part: Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken. It is now well-settled that this requires federal courts to give the same preclusive effect to state court judgments “that those judgments would be given in the courts of the State from which the judgments emerged.” Kremer v. Chemical Constr. Corp., 456 U.S. 461, 466, 102 S.Ct. 1883, 1889, 72 L.Ed.2d 262 (1982); see also Haring v. Prosise, 462 U.S. at 313, 103 S.Ct. at 2373. In the absence of federal law modifying the operation of § 1738, the preclusive effect of a prior state court judgment is therefore determined in the first instance by state law. The Supreme Court has repeatedly held that § 1983 does not operate to modify the application of § 1738 as to either claim or issue preclusion. See Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984) (claim preclusion); Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (issue preclusion); see also University of Tennessee v. Elliot, — U.S. -, 106 S.Ct. 3220, 92 ,L.Ed.2d 635 (1986) (although § 1738 not applicable, federal common law operates to require federal courts to give agency’s fact-finding preclu-sive effect in § 1983 action when agency acting in judicial capacity). An analysis of res judicata or collateral estoppel by a prior state court proceeding in a federal § 1983 action must thus begin with a consideration of whether relitigation of the issue" }, { "docid": "17090926", "title": "", "text": "the lower courts in a cause under review’_” Id. (quoting Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 165, 79 L.Ed. 338 (1934)). The Full Faith and Credit statute, 28 U.S.C. § 1738, which implements the Constitution’s Full Faith and Credit Clause, U.S. Const.art. IV, § 1, and codifies the time-honored principles of federalism and comity that limit the authority of federal courts, see Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 84, 104 S.Ct. 892, 897-98, 79 L.Ed.2d 56 (1984), is directly implicated in this matter of invalidating state court convictions. It is clear that, through the Full Faith and Credit statute, Congress has limited the federal courts’ jurisdiction to invalidate state court judgments. The statute provides, in relevant part, that the judicial proceedings [of any State, Territory, or Possession] ... shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken. 28 U.S.C. § 1738 (emphasis added). The Full Faith and Credit statute requires federal courts to give state court judgments “the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered.” Migra, 465 U.S. at 81, 104 S.Ct. at 896. The statute “reflects a variety of concerns, including notions of comity, the need to prevent vexatious litigation, and a desire to conserve judicial resources.” Id. at 84, 104 S.Ct. at 898. It applies to state criminal as well as state civil judgments. See Allen v. McCurry, 449 U.S. 90, 91, 105, 101 S.Ct. 411, 413, 420, 66 L.Ed.2d 308 (1980). The Supreme Court has held that the requirements of the Full Faith and Credit statute presumptively control unless a coordinate federal statute contains “an express or implied partial repeal” of section 1738. Kremer v. Chemical Constr. Corp., 456 U.S. 461, 468, 102 S.Ct. 1883, 1890, 72 L.Ed.2d 262 (1982). Moreover, the Court has stressed that courts should find an implied" }, { "docid": "23427281", "title": "", "text": "heard to complain of the forfeited decision. Affirmed. . This provision derives, of course, from Article IV, § 1 of the Constitution : “Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” However, by requiring federal courts to recognize state court judgments, see Huron Holding Corp. v. Lincoln Mine Operating Co., 1941, 312 U.S. 183, 61 S.Ct. 513, 85 L. Ed. 725, and by extending full respect to the decrees of the courts of United States territories and possessions, the statute advances the notion of “full faith and credit” beyond its explicit constitutional boundaries. This legislative annexation appears entirely appropriate as necessary and proper for the operation of courts established by Congress under Articles I, III, and IV of the Constitution ; and the courts have adopted no less expansive a policy, easily reading into § 1738 a requiremént that state courts extend full respect to the judgments of federal judicial tribunals within the states, in the absence of any such direct statutory command. See Stoll v. Gottlieb, 1938, 305 U.S. 165, 59 S.Ct. 134, 83 L.Ed. 104. It appears equally clear, however, that a claim based upon 28 U.S.C. § 1738 will not alone suffice to make out a case “arising under” the Constitution or laws of the United States for the purpose of asserting § 1331 federal question jurisdiction. Consequently, a fight over the enforcement of a state court judgment is not automatically entitled to a federal arena. Cf. Minnesota v. Northern Securities Company, 1904, 194 U.S. 48, 24 S.Ct. 598, 48 L.Ed. 870; People ex rel. McColgan v. Bruce, 9 Cir. 1942, 129 F.2d 421, cert. denied 317 U.S. 678, 63 S.Ct. 157, 87 L.Ed. 544. The statute merely provides the standard to be used in evaluating any judicial acts introduced into proceedings over which the court already has jurisdiction. In this case plaintiff has founded jurisdiction on diversity of" }, { "docid": "4787808", "title": "", "text": "and its amendments were superseded by the Bankruptcy Act of 1978, which basically did not change the previous law. The purposes in granting exclusive jurisdiction were to ensure consistency of application of federal law that would be obtained by having judges with expertise in bankruptcy law pass on dischargeability questions and to further the bankruptcy “fresh start” policy by protecting debtors against harassing law suits initiated by creditors after bankruptcy and to perhaps protect unwitting waivers of the debtor’s discharge. For a discussion of the historical background and purpose of § 523(c) and its predecessor, see, Ferrell, The Preclusive Effect of State Court Decisions in Bankruptcy, Second Installment, 59 Amer.Bankr.LJ. 55, 56-59 (1985). In addition, the Full Faith and Credit Clause of the United States Constitution, Art. IV, § 1, was implemented by 28 U.S.C. § 1738, the relevant portions of which provide as follows: The ... judicial proceedings of any court of any state ... shall have the same full faith and credit in every court within the United States and its territories and possessions as they have by law or usage in the courts of such state. The Supreme Court in examining the “full faith and credit clause” and 28 U.S.C. § 1738 has stated, “a federal court must give to a state court judgment the same preclusive effect as would be given that judgment under the law of the state in which the judgment was rendered”. Migra v. Warren City School District Board of Education, 465 U.S. 75, 896 104 S.Ct. 892, 896, 79 L.Ed.2d 56, 63 (1984). See also, Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985); McDonald v. West Branch, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984); Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982). In Marrese the Court noted: The preclusive effect of a state court judgment in a subsequent federal lawsuit generally is determined by the full faith and credit statute, which provides that state judicial proceedings, “shall have the same full faith and" }, { "docid": "16636471", "title": "", "text": "F. 298, 305 (W.D.Ark.1883) in which the district court held that the Cherokee nation was not a “territory” under the federal extradition statute. State courts have reached varied results, citing either Mackey or Morgan as authority, depending on the outcome. In our view, the decisive factor in determining Congress’s intent was the enactment of subsequent statutes which expressly extended foil faith and credit to certain tribal proceedings: the Indian Land Consolidation Act, 25 U.S.C. §§ 2201-2211 (1988) (extending full faith and credit for certain actions involving trust, restricted or controlled lands), the Maine Indian Claims Settlement Act, 25 U.S.C. § 1725(g) (1980) (requiring the Passamaquoddy Tribe, the Penobscot Nation and the State of Maine to “give full faith and credit to the judicial proceedings of each other”), and the Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901 et seq. (extending full faith and credit to tribal custody proceedings). The Indian Child Welfare Act provides in relevant part: The United States, every State, every territory or possession of the United States, and every Indian tribe shall give full faith and credit to the public acts, records, and judicial proceedings of any Indian tribe applicable to Indian child custody proceedings to the same extent that such entities give full faith and credit to the publie acts, records, and judicial proceedings of any other entity. Id. § 1911(d). A later legislative act can be regarded as a legislative interpretation of an earlier act and “is therefore entitled to great weight in resolving any ambiguities and doubts.” Erlenbaugh v. United States, 409 U.S. 239, 243-44, 93 S.Ct. 477, 480, 34 L.Ed.2d 446 (1972) (quoting United States v. Stewart, 311 U.S. 60, 64-65, 61 S.Ct. 102, 105, 85 L.Ed. 40 (1940)). If full faith and credit had already been extended to Indian tribes, enactment of the Indian Land Consolidation Act, the Maine Indian Claims Settlement Act, and the Indian Child Welfare Act would not have been necessary. Further, the separate listing of territories, possessions and Indian tribes in the Indian Child Welfare Act provides an indication that Congress did not view these terms" }, { "docid": "16636467", "title": "", "text": "Marchington and Inland Empire in the Blackfeet Tribal Court. The tribal jury found in favor of Wilson and awarded her $246,100. The Blackfeet Court of Appeals reversed for a hearing on whether punitive damages had been improperly awarded, but the Blackfeet Supreme Court reversed the Blackfeet Court of Appeals and reinstated the original judgment in favor of Wilson. Claiming her judgment was entitled to fell faith and credit or comity, Wilson brought suit in the United States District Court for the District of Montana to register the tribal court judgment in the federal court system. The district court granted summary judgment in favor of Wilson. II No legal judgment has any effect, of its own force, beyond the limits of the sovereignty from which its authority is derived. Because states and Indian tribes coexist as sovereign governments, they have no direct power to enforce their judgments in each other’s jurisdictions. By contrast, the United States Constitution and implementing legislation require fell faith and credit be given to judgments of sister states, territories, and possessions of the United States. U.S. Const, art. IV, § I, cl. 1; 28 U.S.C. § 1738. The extent to which the United States, or any state, honors the judicial decrees of foreign nations is a matter of choice, governed by “the comity of nations.” Hilton v. Guyot, 159 U.S. 113, 163, 16 S.Ct. 139, 143, 40 L.Ed. 95(1895). Determining comity to be a proper basis for recognizing a tribal court judgment is not a remarkable notion; indeed, both parties agree that it is appropriate. However, Wilson asserts comity only as an alternative analysis, contending that a tribal judgment must be recognized by the United States under 28 U.S.C. § 1738, the implementing legislation of the United States Constitution’s Full Faith and Credit Clause. The Constitution’s Full Faith and Credit Clause provides: Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect" }, { "docid": "16932460", "title": "", "text": "made in Phase I of the Engle class action to establish part of their individual claims against the Defendants. Defendants argue that the findings are so generalized that they cannot be used to satisfy any element of Plaintiffs’ claims. In order to analyze these contentions, the relevant framework of analysis must first be established. In considering the effect of the Engle verdict, or any state court ruling for that matter, this Court is guided by principles of full faith and credit. Although the Constitution’s Full Faith and Credit Clause requires that states recognize the judgments of sister states, Congress made this general rule applicable to federal courts by enacting 28 U.S.C. § 1738, which provides: Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State Territory or Possession from which they are taken. Consequently, “a federal court must give to a state-court judgment the same preclu-sive effect as would be given the judgment under the law of the State in which the judgment was rendered.” Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 81, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984). “Indeed, though the federal courts may look to the common law or to the policies supporting res judicata and collateral estoppel in assessing the preclusive effect of decisions of other federal courts, Congress has specifically required all federal courts to give preclusive effect to state-court judgments whenever the courts of the State from which the judgments emerged would do so.... ” Allen v. McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980); accord Kremer v. Chemical Constr. Corp., 456 U.S. 461, 466, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982) (“Section 1738 requires federal courts to give the same preclusive effect to state court judgments that those judgments would be given in the courts of the State from which the judgments emerged.”) Thus, in the absence of federal law" }, { "docid": "22123406", "title": "", "text": "Ms. Hamilton’s bad faith violations continued past the date of the last state court hearing, and, thus, are distinct from the issue considered in the state court proceedings. Third, the plaintiffs argue that full faith and credit should not apply in this case because of a prior district court ruling that the prosecutions were brought in bad faith. Finally, they argue that the state court proceedings were so infected with bias, “that it is impossible to conclude that the constitutional rights of these plaintiffs were protected therein____” Aplts’ Br. at 38. We review a grant of summary judgment de novo, applying the same legal standard as the district court under Fed. R.Civ.P. 56(c). See Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). Summary judgment is appropriate if “there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). We examine the record and reasonable inferences therefrom in the light most favorable to the nonmoving party. See id. If there is no genuine issue of material fact in dispute, we must determine whether the district court correctly applied the law. See id. The Full Faith and Credit Act, 28 U.S.C. § 1738, codifies the Full Faith and Credit Clause of the Constitution, Art. IV, § 1. The statute provides, in pertinent part, that the “records and judicial proceedings of any court of any such State ... shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.” 28 U.S.C. § 1738 (1994). In Allen v. McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 415-16, 66 L.Ed.2d 308 (1980), the Supreme Court held that § 1738 requires that federal courts give state court rulings the same preclusive effect in a subsequent § 1983 ease that the rulings would have in the courts of that state. However, that preclusive effect will" }, { "docid": "22334307", "title": "", "text": "that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record, construed favorably to the nonmoving party, do not raise a genuine issue of material fact for. trial, entry of summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A. Plaintiff first contends that the district court's holding that his due process claim was barred by the full faith and credit statute is erroneous. Plaintiff argues that since he did not raise the pretermination hearing issue in state court, he should not be barred from now raising it in federal court. Plaintiff also argues that his post-termination claim should not be barred because the state courts were without jurisdiction to address that claim since the proper pretermination procedures had not been followed. The foundation of the district court’s holding on this issue is the full faith and credit statute, which provides in relevant part that: The records and judicial proceedings of any court of any ... State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States____ Such acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken. 28 U.S.C. § 1738. The effect of this statute is to impose on federal courts “the obligation to give state court judgments the same effect as they have in the state in which they were rendered.” Loudermill v. Cleveland Bd. of Educ., 721 F.2d 550, 556 (6th Cir.1983), aff'd, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). In other words, if an individual is precluded from litigating a suit in a state court by the traditional principles of res judicata, he is similarly precluded from litigating the suit in federal court. See Kremer v. Chemical Constr. Corp., 456 U.S. 461, 482, 102 S.Ct. 1883, 1898, 72 L.Ed.2d 262 (1982). In" }, { "docid": "14833370", "title": "", "text": "the first adversary proceeding, they ultimately lost the war. The appellants sought review in the district court, which issued a brief opinion summarily affirming the bankruptcy court’s order. See Order, reprinted in R., vol. 8, tab 36. The appellants now ask this court to hold that the bankruptcy judge erred by giving full faith and credit to the state court judgment, thereby dismissing their second adversary proceeding and their motion to compel distribution. The City cross-appeals, contending that Judge Kelly erred by reconsidering and reinstating the second adversary proceeding even though he ultimately dismissed it. DISCUSSION The Full Faith and Credit Act, 28 U.S.C. § 1738, was founded upon article IV, section 1, of the Constitution, see Roller v. Murray, 234 U.S. 738, 745, 34 S.Ct. 902, 905, 58 L.Ed. 1570 (1914), and provides that a state’s “Acts, records and judicial proceedings ... shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.” Section 1738 directs this federal court to give the Texas judgment the same effect as it would have in a Texas court. See Parsons Steel, Inc. v. First Alabama Bank, 474 U.S. 518, 525, 106 S.Ct. 768, 772, 88 L.Ed.2d 877 (1986); Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 381, 105 S.Ct. 1327, 1332, 84 L.Ed.2d 274 (1985); Migra v. Warren City School Dist. Bd. of Education, 465 U.S. 75, 81, 104 S.Ct. 892, 896, 79 L.Ed.2d 56 (1984); Kremer v. Chemical Constr. Co., 456 U.S. 461, 482, 102 S.Ct. 1883, 1898, 72 L.Ed.2d 262 (1982); Allen v. McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980). The bankruptcy court’s decision to give full faith and credit to the state court judgment was a conclusion of law, which we review de novo, see In re Fabricators, Inc., 926 F.2d 1458, 1464 (5th Cir.1991). The appellants argue that a Texas court would not give full faith and credit to this" }, { "docid": "7375841", "title": "", "text": "v. Citizens for a Better Env’t, 523 U.S. 83, 89, 118 S.Ct. 1003, 1010, 140 L.Ed.2d 210 (1998) (quoting Bell, 327 U.S. at 682-83, 66 S.Ct. at 776), we may determine whether plaintiffs have alleged an actionable claim under the full faith and credit clause. See Thompson v. Thompson, 484 U.S. 174, 178-79, 108 S.Ct. 513, 516, 98 L.Ed.2d 512 (1988) (affirming dismissal of full faith and credit suit for failure to state a claim). B. Full Faith and Credit The questions at issue are the scope of the full faith and credit clause and whether its violation is redressable in federal court in a § 1983 action. Appellees contend that their claim arises under the full faith and credit clause, effectuated in federal law by 28 U.S.C. § 1738. The Constitution’s Article IV, § 1 provides: Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. In pertinent part, the statute states: § 1738. State and Territorial statutes and judicial proceedings; full faith and credit. Such Acts, records and judicial proceedings or copies thereof [of any State, Territory, or Possession of the United States], so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken. 28 U.S.C. § 1738. Infant J was adopted in a court proceeding in New York state, as evidenced by a judicial decree. Appellees contend that Art. IV, § 1 and § 1738 oblige the Registrar to “recognize” their adoption of Infant J by issuing a revised birth certificate. The Registrar declined, however, to enforce the New York decree by altering Infant J’s official birth records in a way that is inconsistent with Louisiana law governing reissuance. See La.Rev.Stat. Ann. § 40:76; La Child. Code Ann. arts." }, { "docid": "16636473", "title": "", "text": "as synonymous. Thus, we conclude that Congress did not extend full faith and credit to the tribes under 28 U.S.C. § 1738. Further, if Congress had specifically intended to include Indian tribes under the umbrella of 28 U.S.C. § 1738, it could have easily done so either by specifically referencing them in the 1804 amendments, or by further amending the statute once ambiguous judicial constructions appeared. It chose not to, but rather elected to create a special exception in cases of Indian child custody determinations and land trusts. Given this history, it would be imprudent of us to now construe the phrase “territories and possessions” in the 1804 statute to assume the meaning of the language Congress used in the Indian Child Welfare Act (“every territory or possession of the United States, and every Indian tribe ”) (emphasis added) and Indian Land Consolidation Act. Certainly, there are policy reasons which could support an extension of full faith and credit to Indian tribes. Those decisions, however, are within the province of Congress or the states, not this Court. Full faith and credit is not extended to tribal judgments by the Constitution or Congressional act, and we decline to extend it judicially. Ill In absence of a Congressional extension of full faith and credit, the recognition and enforcement of tribal judgments in federal court must inevitably rest on the principles of comity. Comity “is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other.” Hilton v. Guyot, 159 U.S. 113, 163-64, 16 S.Ct. 139, 143-44, 40 L.Ed. 95 (1895). As a general policy, “[cjomity should be withheld only when its acceptance would be contrary or prejudicial to the interest of the nation called upon to give it effect.” Somportex Ltd. v. Philadelphia Chewing Gum Corp., 453 F.2d 435, 440 (3d Cir.1971). At its core, comity involves a balancing of interests. “[I]t is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to" }, { "docid": "18896012", "title": "", "text": "S.Ct. 1883, 1889 n. 6, 72 L.Ed.2d 262 (1982), the Act now provides: [T]he ... judicial proceedings of any court of any such State ... shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such state. 28 U.S.C. § 1738. In light of this statute, the general rule in the federal courts is that “a state-court judgment commands the same [preclusive] effects in federal court that it would have in the court that entered it.” 18 C. Wright & A. Miller, Federal Practice and Procedure § 4469 at 659-60 (2d ed. 1981) [hereinafter “Wright and Miller”']. Indeed, in a wide variety of settings the Supreme Court has held that the full faith and credit statute must be followed. For instance, in Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980), the Supreme Court held that prior state-court judgments dealing with issues that could be the subject of civil rights claims under 42 U.S.C. § 1983 are entitled to preclusive effect in federal court if such effect would be given under the state’s issue preclusion rules. The Allen Court based its holding on the full faith and credit statute, writing, “[Aljthough the federal courts may look to the common law or to the policies supporting res judicata and collateral estoppel in assessing the preclusive effect of decisions of other federal courts, Congress has specifically required all federal courts to give preclusive effect to state-court judgments whenever the courts of the State from which the judgments emerged would do so” Id. (citing 28 U.S.C. § 1738) (emphasis added). The Allen Court rejected the argument that the special role of the federal courts in protecting civil rights operates to negate the effect of § 1738. According to the Allen majority, “[Njothing in the language of § 1983 remotely expresses any congressional intent to contravene the common-law rules of preclusion or to repeal the express statutory requirements of the predecessor of 28 U.S.C. § 1738.” Allen, 449 U.S." }, { "docid": "23638199", "title": "", "text": "of the issue in a suit on a different cause of action involving a party to the first case.” Id.; see also id. at 94 n. 5, 101 S.Ct. at 415 n. 5 (citing Restatement (Second) of Judgments § 74 (Tent. Draft No. 3, Apr. 15, 1976) for use of term “claim preclusion” as equivalent to res judicata and “issue preclusion” for collateral estop-pel). Collateral estoppel cannot apply, however, unless the party against whom the earlier decision is asserted had a “full and fair opportunity” to litigate the issue in the earlier case. See Haring v. Prosise, 462 U.S. 306, 313, 103 S.Ct. 2368, 2373, 76 L.Ed.2d 595 (1983); Allen v. McCurry, 449 U.S. at 95, 101, 101 S.Ct. at 415, 418; Restatement (Second) of Judgments § 29 (1982). The rationale behind claim and issue preclusion is to relieve the parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and to encourage reliance on adjudication by preventing inconsistent decisions. See Allen v. McCurry, 449 U.S. at 94, 101 S.Ct. at 415 (citing Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979)). Congress has passed legislation which requires federal courts to give preclusive effect to state court judgments. The Constitution’s Full Faith and Credit Clause is implemented by the federal full faith and credit statute, 28 U.S.C. § 1738 (1982). The statute provides in pertinent part: Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken. It is now well-settled that this requires federal courts to give the same preclusive effect to state court judgments “that those judgments would be given in the courts of the State from which the judgments emerged.” Kremer v. Chemical Constr. Corp., 456 U.S. 461, 466, 102 S.Ct. 1883, 1889, 72 L.Ed.2d 262 (1982); see also Haring v. Prosise, 462 U.S. at 313, 103" }, { "docid": "18016008", "title": "", "text": "officer based upon Ex parte Young.”). This Seminole Tribe exception applies if we can discern an intent to displace Ex parte Young suits through the establishment of a more limited remedial regime. See Verizon, 535 U.S. at 647-48, 122 S.Ct. 1753. The Cherokee Nation argues that article VII of the 1866 Treaty provides such a remedial scheme against the tribe, thereby foreclosing suits against the tribe’s officers. But the treaty provision in question, which opens the federal courts to suits between “inhabitant^]” of two different districts within the tribe’s territory, does not by its terms provide for any type of suit against the tribe itself. As the Cherokee Nation itself argues elsewhere in its briefs, the tribe is not an “inhabitant” of its own territory. Cherokee Nation’s Br. at 26. The 1866 Treaty does not provide for any remedial scheme against the Cherokee Nation, much less a “detailed remedial scheme,” so the Seminole Tribe argument fails. C. Finally, the Cherokee Nation argues that the Freedmen cannot pursue their claims under Ex parte Young because the requested relief “implicates special sovereignty interests.” Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 281, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997). In Coeur dAlene, the Supreme Court held that Ex parte Young did not allow a tribe to sue state officers for infringing upon tribal property rights in violation of federal law, reasoning that control of submerged lands was a core sovereign interest of the State. The Cherokee Nation contends that its special interests in controlling internal governance and defining tribal membership call for a similar result. We reject this argument. The Cherokee Nation has no interest in protecting a sovereignty concern that has been taken away by the United States. As the district court went to great lengths to explain, Vann, 467 F.Supp.2d at 66-70, the Thirteenth Amendment and the 1866 Treaty whittled away the tribe’s sovereignty with regard to slavery and left it powerless to discriminate against the Freedmen on the basis of their status as former slaves. The tribe does not just lack a “special sovereignty interest” in discriminatory elections —" }, { "docid": "4636643", "title": "", "text": "the bankruptcy “fresh start” policy by protecting debtors against harassing law suits initiated by creditors after bankruptcy and -to perhaps protect unwitting waivers of the debtor’s discharge. For a discussion of the historical background and purpose of § 523(c) and its predecessor, see, Ferrell, The Preclusive Effect of State Court Decisions in Bankruptcy, Second Installment, 59 Amer.Bankr.L.J. 55, 56-59 (1985). In addition the Full Faith and Credit Clause of the United States Constitution, Art. IY, § 1, was implemented by 28 U.S.C. § 1738, the relevant portions of which provide as follows: The ... judicial proceedings of any court of any state ... shall have the same full faith and credit in every court within the United States and its territories and possessions as they have by law or usage in the courts of such state. The Supreme Court in examining the “full faith and credit clause” and 28 U.S.C. § 1738 has stated, “a federal court must give to a state court judgment the same preclusive effect as would be given that judgment under the law of the state in which the judgment was rendered”. Migra v. Warren City School District Board of Education, 465 U.S. 75, 81, 104 S.Ct. 892, 896, 79 L.Ed.2d 56, 63 (1984). See also, Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985); McDonald v. West Branch, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984); Kremer v. Chemi cal Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982). In Marrese the Court noted: The preclusive effect of a state court judgment in a subsequent federal lawsuit generally is determined by the full faith and credit statute, which provides that state judicial proceedings, “shall have the same full faith and credit in every court within the United States ... as they have by law or usage in the courts of such State ... from which they are taken.” 28 U.S.C. § 1738. This statute directs a federal court to refer to the preclusion law of the State in which judgment was rendered." }, { "docid": "9803388", "title": "", "text": "a better and clearer way to describe it, is referred to by many as “our Federalism,” and one familiar with the profound debates that ushered .our Federal Constitution into existence is bound to respect those who remain loyal to the ideals and dreams of “Our Federalism.” ... What the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States. Id. at 44-45, 91 S.Ct. 746. The Supreme Court has stated that these “elementary principles of federalism and comity” are “embodied in the full faith and credit statute, 28 U.S.C. § 1738.” Growe v. Emison, 507 U.S. 25, 35-36, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993); see also Parsons Steel, Inc. v. First Alabama Bank, 474 U.S. 518, 523, 106 S.Ct. 768, 88 L.Ed.2d 877 (1986). It is, of course, a longstanding principle of Constitutional jurisprudence that because a “statute is a ‘public act,’ faith and credit must be given to its provisions[.]” John Hancock Mut. Life Ins. Co. v. Yates, 299 U.S. 178, 183, 57 S.Ct. 129, 81 L.Ed. 106 (1936) (Brandéis, J.). Thus, so as “not [to] unduly interfere with the legitimate activities of the States,” Younger, 401 U.S. at 45, 91 S.Ct. 746, and to enforce the protections intended to States by the Full Faith and Credit Clause of the Constitution, see Hughes v. Fetter, 341 U.S. 609, 613 n. 16, 71 S.Ct. 980, 95 L.Ed. 1212 (1951), Congress has further directed that: The Acts of the legislature of any State, Territory, or Possession of the United States ... shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken. 28 U.S.C. § 1738. The Full Faith and" }, { "docid": "15193656", "title": "", "text": "461, 485, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982) (“[T]he usual rule is that merits of a legal claim once decided in a court of competent jurisdiction are not subject to redetermination in another forum.”); Allen v. McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (“Congress has specifically required all federal courts to give preclusive effect to state-court judgments whenever the courts of the State from which the judgments emerged would do so.”); Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979) (“Under collateral estoppel, once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation.”). Stated broadly, issue preclusion prevents relitigation of the same issues in a later case. More than two hundred years ago, the first Congress enacted the predecessor to 28 U.S.C. § 1738, the Full Faith and Credit Act, which now provides: The ... judicial proceedings of any court of any ... State, Territory, or Possession [of the United States] ... shall have -the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken. Section 1738 therefore requires state court decisions be given the same preclusive effect in federal court they would be given in the courts of the rendering state. The phrase “every court within the United States” encompasses all courts, regardless of jurisdiction. The statute directs federal courts considering the preclusive effect of another jurisdiction’s prior judgment to look not to federal preclusion law or practice but to what the other jurisdiction would decide regarding its preclusive effect. The threshold issue on appeal is whether the District Court should have given preclusive effect to the narrow issue of the DRPA’s collective bargaining obligations, previously litigated in Lodge 30. A federal court looks to the law of the adjudicating state to determine its" } ]

[ { "docid": "22414746", "title": "", "text": "when made, must operate upon the power to borrow before it is exercised, and have a sensible influence on the contract. The extent of this influence depends on the will of a distinct government. To any extent, however inconsiderable, it is a burden on the operations of government.” Mr. Justice Stone, dissenting. I think the question should be answered in the affirmative. The implied immunity of one government, either national or state, from taxation by the other should not be enlarged. Immunity of the one necessarily involves curtailment of the other’s sovereign power to tax. The practical effect of enlargement is commonly to relieve individuals from a tax, at the expense of the government imposing it, without substantial benefit to the government for whose theoretical advantage the immunity is invoked. Compare Metcalf & Eddy v. Mitchell, 269 U. S. 514, 522-4; South Carolina v. United States, 199 U. S. 437, 455; Railroad Co. v. Peniston, 18 Wall. 5, 30-31; see also Missouri v. Gehner, 281 U. S. 313, 323; Macollen Co. v. Massachusetts, 279 U. S. 620, 637. This is especially the case where, as here, the sole ground of the immunity is that, although the tax is an excise collected by one government from an individual normally subject to it, the incidence of the tax may conceivably be shifted to the other government. In such a case it is not clear how a recovery by the taxpayer would benefit directly the government supposed to be burdened; and the assumption of indirect benefit in the case of a tax of this type necessarily rests upon speculation rather than reality. See Lash’s Products Co. v. United States, 278 U. S. 175. It is significant that neither the federal nor any state government has appeared by intervention or otherwise to support this claim of immunity in cases in which the taxpayer has urged it upon us. The court has many times held, and as recently as in Educational Films Cory. v. Ward, 282 U. S. 379, that an excise tax, imposed directly on the individual, is not invalid because indirectly it may" } ]

[ { "docid": "12223181", "title": "", "text": "the expenditures are personal, with deduction prohibited under § 24(a) (1), 26 U.S.C.A. § 24. This leads us to a consideration of what constitutes a trade or business within the purview of § 23, and what constitutes The two concepts are interwoven, and the question we have presented is not free from doubt. As was said in Monell v. Helvering, Commissioner, 2 Cir., 70 F.2d 631 [page 632], “The point where the one class of expenses [business] merges into the other [personal] is often hard to determine.” We give heed, however, to the admonition of the court, “However blurred it may be, it is necessary to keep the distinction which Congress has made.” carrying it on. Congress has not defined the phrase “carrying on any trade or business.” Adjudications permit us, however, to eliminate some activities which upon occasion have been urged as being within the purview of the phrasing and so to narrow our question. The concession that the petitioner’s expenses were ordinary and necessary eliminates from consideration as controlling on our main question decisions like that in Kornhauser v. United States, 276 U.S. 145, 48 S.Ct. 219, 72 L.Ed. 505, and Welch v. Helvering, 290 U.S. 111, 54 S.Ct. 8, 78 L.Ed. 212, wherein the necessary or ordinary character of the expense was the sole issue. It may also be concluded without discussion that an isolated business transaction is not within the phrase and that this is likewise true of transactions that are occasional rather than regular and continued. Van Wart v. Commissioner, 295 U.S. 112, 55 S.Ct. 660, 79 L.Ed. 1336. We do not in this connection concern ourselves with refined distinctions between the language used in § 23(a) in respect to deductible expenses and that used in § 23(e) in relation to deductible losses, though such distinctions have sometimes been drawn. In Flint v. Stone Tracy Co., 220 U.S. 107, 171, 31 S.Ct. 342, 55 L.Ed. 389, Ann.Cas.1912B, 1312, in passing on a case under the corporation excise tax law, the court defined the word “business” as being a very comprehensive term embracing everything about which" }, { "docid": "6538382", "title": "", "text": "or of the nation are exempt from taxation by the other. In a federation like ours where two governments, each supreme in its own sphere, exercise sovereign powers in the same territory, there must be some measure of accommodation to permit each to exist so supreme. Both must raise revenue by taxation, and each must itself be free from taxation by the other. That neither may tax the other was established as long ago as McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579. And that is still a fundamental principle. Helvering v. Powers, 293 U.S. 214, 55 S.Ct. 171, 79 L.Ed. 291. See, United States v. State of California, 297 U.S. 175, 56 S.Ct. 421, 80 L.Ed. 567. Nor where the principle is applicable does it matter that the amount of the proposed tax and the resulting interference- with the taxed government is great or small for the immunity is absolute whenever it does exist. Johnson v. Maryland, 254 U.S. 51, 41 S.Ct. 16, 65 L.Ed. 126. But the principle itself is limited by that from which it arises, i. e. the need to preserve our dual system of government and does not extend beyond that necessity. Indian Motorcycle Co. v. United States, 283 U.S. 570, 51 S.Ct. 601, 75 L.Ed. 1277. So where the burden is not direct but only remote it falls within the realm of necessary accommodation and there is no immunity. See Willcuts v. Bunn, 282 U.S. 216, 51 S.Ct. 125, 75 L.Ed. 304, 71 A.L.R. 1260; Fox Film Corporation v. Doyal, 286 U.S. 123, 52 S.Ct. 546, 76 L.Ed. 1010. That the supplying of water by the subdivision of the government of the city of New York from which the petitioner derives the salary which has been taxed is the furnishing to the inhabitants of the city of something' indispensable to them cannot be gainsaid. That does not, of course, mean that the city government must do it either to provide the people with water or, what is closer to the issue here, to exist as a municipal subdivision of the government of the" }, { "docid": "11973916", "title": "", "text": "law for their own benefit, and cite in support of their position the Supreme Court eases of Gillespie v. Oklahoma, 257 U. S. 501, 42 S. Ct. 171, 66 L. Ed. 338; Panhandle Oil Co. v. Mississippi, 277 U. S. 218, 48 S. Ct. 451, 56 A. L. R. 583; Indian Motocycle Co. v. United States, 283 U. S. 570. 51 S. Ct. 601, 75 L. Ed. 1277; Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 52 S. Ct. 443, 76 L. Ed. 815. In opposition to the contention of appellants the government relies principally on the following Supreme Court decisions: Metcalf & Eddy v. Mitchell, 269 C. S. 514, 46 S. Ct. 172, 70 L. Ed. 384; Lucas v. Howard, 280 U. S. 526, 50 S. Ct. 87, 74 L. Ed. 593; Lucas v. Reed, 281 U. S. 699, 50 S. Ct. 352, 74 L. Ed. 1125; Group No. 1 Oil Corp. v. Bass, 283 U. S. 279, 51 S. Ct. 432, 75 L. Ed. 1032. It would serve no useful purpose to review or discuss these cases in this opinion, as from time to time wo have had occasion to consider them all. Blair v. Mathews (C. C. A.) 29 F.(2d) 892; Bass v. Group No. 1 Oil Corp. (C. C. A.) 41 F.(2d) 483; Roberts v. Commissioner (C. C. A.) 44 F.(2d) 168; United States v. Butler (C. C. A.) 49 F.(2d) 52; Brown v. Commissioner (C. C. A.) 55 F.(2d) 1076; Register v. Commissioner (C. C. A.) 69 P.(2d) 607. The recent ease of Trinityfarm Construction Co. v. Grosjean, 54 S. Ct. 469, 78 L. Ed. 918, decided March 5, 1934, notwithstanding any conflict of opinion in earlier Supreme Court eases, follows Willcuts v. Bunn, supra, and Fox Film Corp. v. Doyal, 286 U. S. 123, 52 S. Ct. 546, 76 L. Ed. 1010, in holding that governmental immunity from taxation does not extend to private persons or corporations having business connection witb it where the burden of the tax, if any, up on the government is not immediate and direct, but is" }, { "docid": "8878632", "title": "", "text": "specific matters of conservation and liquidation when appointed to do so. It will serve no purpose to cite or discuss the great number of authorities according or denying exemption on varying states of facts. It is sufficient to say they all agree upon the principle that where the effect of the tax upon the state is regarded as immediate and direct there is immunity; where it is regarded as remote and indirect there is none. Illustrative cases discussing the principle and assembling the authorities are: Helvering v. Powers, 293 U.S. 214, 55 S.Ct. 171, 79 L.Ed. 291; Burnet v. A. T. Jergins Trust, 288 U.S. 508, 53 S.Ct. 439, 77 L.Ed. 925; Metcalf & Eddy v. Mitchell, Administratrix, 269 U.S. 514, 46 S.Ct. 172, 70 L.Ed. 384; Register v. Commissioner (C.C.A.) 69 F.(2d) 607, 93 A.L.R. 186; Fox Film Corporation v. Doyal, 286 U.S. 123, 52 S.Ct. 546, 76 L.Ed. 1010; Liggett & Meyers Tobacco Co. v. United States, 57 S.Ct. 239, 81 L.Ed. -, decided January 4, 1937. I think the Board rightly denied the exemption. Its decision and order should stand. I dissent from the reversal." }, { "docid": "8028232", "title": "", "text": "D.C., 8 F.Supp. 989; Brush v. Commissioner, 300 U.S. 352, 57 S.Ct. 495, 81 L.Ed. 691, 108 A.L.R. 1428, and Goodale v. Commissioner, 34 B.T.A 697, in support of his theory. In both the Mallory and the Goodale Cases referred to in the preceding paragraph, tax immunity was based upon the finding that the employment sought to be taxed was employment in the nature of an essential governmental function. In Mallory v. White, decided November 9, 1934, the Court determined that the underlying test for determining if work being carried on by a municipality is governmental or proprietary in nature is “whether the act is for the common good of all without the element of special corporate benefit or pecuniary profit” [page 992], citing Bolster v. City of Lawrence, 225 Mass. 387, 390, 114 N.E. 722, L.R.A.1917B, 1285. In Goodale v. Commissioner, supra, the Court discussed the findings of the Court of Claims in Liggett & Myers Tobacco Co. v. United States, 13 F.Supp. 143. There it had been held that tobacco purchased for distribution in a state hospital was subject to a federal tax. The decision in the Liggett Case was affirmed in the Supreme Court, 299 U.S. 383, 57 S.Ct. 239, 81 L.Ed. 294, without deciding whether the Court of Claims was correct in its finding that the State of Massachusetts, in establishing and maintaining the hospital referred to, was not exercising any sovereign power. The decision in the Good-ale Case then cited with approval the decision in Mallory v. White, supra, and ruled that the salary of the superintendent of the Buffalo City Hospital was exempt from federal taxation because “this hospital is an instrumentality of a political subdivision of the state, engaged in an essential governmental function.” Later, the Supreme Court in Helvering v. Powers, 293 U.S. 214, 225, 55 S.Ct. 171, 173, 79 L.Ed. 291, stated: “The principle of immunity thus has inherent limitations. Metcalf & Eddy v. Mitchell, supra, 269 U.S. [514] pp. 522-524, 46 S.Ct. 172 [70 L.Ed. 384]; Willcuts v. Bunn, 282 U.S. 216, 225, 226, 51 S.Ct. 125, 75 L.Ed. 304," }, { "docid": "11962100", "title": "", "text": "rates to private consumers and furnished water for public purposes in return for the proceeds from a defined water tax. A right of purchase by the city. With this fact situation in mind, we turn to the legal issues presented by petitioner’s contentions (1) that this company is a governmental agency of the city and, as such, its income is beyond the taxing power of Congress, and (2) that it is not taxable under the Revenue Act of 1928 because excluded by Section 116 (d) thereof. (1) Governmental Agency. We start with the established rule of law that governmental agencies of a political subdivision of a state are not within the taxing power (income or otherwise) of the national'government. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 399, 52 S.Ct. 443, 444, 76 L.Ed. 815; Indian Motocycle Co. v. United States, 283 U.S. 570, 575,.51 S.Ct. 601, 602, 75 L.Ed. 1277; United States v. Baltimore & O. Railroad Co., 17 Wall. 322, 21 L.Ed. 597. The question here is whether this corporation in this situation is such an instrumentality. “Just what instrumentalities of either a state or the federal government are exempt from taxation by the other cannot be stated in terms of universal application.” Metcalf & Eddy v. Mitchell, 269 U.S. 514, 522, 46 S.Ct. 172, 174, 70 L.Ed. 384, quoted in Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 399, 52 S.Ct, 443, 444, 76 L.Ed. 815. However, it has been determined that “those agencies through which either government immediately and directly exercises its sovereign powers, are immune from the taxing power of the other” (Metcalf & Eddy v. Mitchell, 269 U.S. 514, 522, 46 S.Ct. 172, 174, 70 L.Ed. 384; Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 399, 52 S.Ct. 443, 444, 76 L.Ed. 815) while “as to persons or corporations which serve as agencies of government, national or state, and also have private property or engage on their own account in business for gain, it is well settled that the principle does not extend to their private property or" }, { "docid": "6538383", "title": "", "text": "that from which it arises, i. e. the need to preserve our dual system of government and does not extend beyond that necessity. Indian Motorcycle Co. v. United States, 283 U.S. 570, 51 S.Ct. 601, 75 L.Ed. 1277. So where the burden is not direct but only remote it falls within the realm of necessary accommodation and there is no immunity. See Willcuts v. Bunn, 282 U.S. 216, 51 S.Ct. 125, 75 L.Ed. 304, 71 A.L.R. 1260; Fox Film Corporation v. Doyal, 286 U.S. 123, 52 S.Ct. 546, 76 L.Ed. 1010. That the supplying of water by the subdivision of the government of the city of New York from which the petitioner derives the salary which has been taxed is the furnishing to the inhabitants of the city of something' indispensable to them cannot be gainsaid. That does not, of course, mean that the city government must do it either to provide the people with water or, what is closer to the issue here, to exist as a municipal subdivision of the government of the state of New York. Quite as necessary to the well-being of the people is an opportunity to purchase an adequate supply of proper food and clothing, yet no one would, we suppose, undertake to maintain that if the city government took over that business it would be engaging in an activity necessary to its existence as a government. More nearly at hand, perhaps, is the supplying of gas and electricity, but when, if at ail, that comes about it will hardly be said that governmental existence as such, required it. On the contrary, due regard must be had to distinguish between those .activities which, though impressed with a public interest and sometimes, even often, performed by government, are nevertheless done in a proprietary capacity in supplying to the public for a direct charge what it could, and otherwise would, procure from private sources, and those services which have become the usual activities of government because purely governmental power is in some degree essential to their performance. When a state government or one of its subdivisions" }, { "docid": "4180618", "title": "", "text": "U.S. 1, 56 S.Ct. 59, 80 L.Ed. 3, 101 A.L.R. 391; United States v. Kirby Lumber Co., 284 U.S. 1, 52 S.Ct. 4, 76 L.Ed. 131; Burnet v. Wells, 289 U.S. 670, 53 S.Ct. 761, 77 L.Ed. 1439; Corliss v. Bowers, 281 U.S. 376, 50 S.Ct. 336, 74 L.Ed. 916; Miles v. Safe Deposit & Trust Co., 259 U.S. 247, 42 S.Ct. 483, 66 L.Ed. 923; Eisner v. Macomber, supra; Lynch v. Hornby, 247 U.S. 339, 38 S.Ct. 543, 62 L.Ed. 1149; Southern Pac. Co. v. Lowe, 247 U.S. 330, 38 S.Ct. 540, 62 L.Ed. 1142; MacLaughlin v. Harr, 3 Cir., 99 F.2d 638. It seems logical to conclude that any tax, if it is to qualify as a tax on income within the meaning of Section 131 (a) (1), is subject to the same basic restrictions. The Supreme Court, without advancing any precise definition of the term “income tax”, has unmistakably determined that taxes imposed on subjects other than income, e.g., franchises, privileges, etc., are not income taxes, although measured on the basis of income. Stratton’s Independence, Ltd., v. Howbert, 231 U.S. 399, 34 S.Ct. 136, 58 L.Ed. 285; McCoach v. Minehill & S. H. R. Co., 228 U.S. 295, 33 S.Ct. 419, 57 L.Ed. 842; Flint v. Stone Tracy Co., 220 U.S. 107, 31 S.Ct. 342, 55 L.Ed. 389, Ann.Cas.1912B, 1312; Spreckels Sugar Refining Co. v. McClain, 192 U.S. 397, 24 S.Ct. 376, 48 L.Ed. 496; see: Doyle v. Mitchell Bros. Co., 247 U.S. 179, 183, 38 S.Ct. 467, 62 L.Ed. 1054; United States v. Whitridge, 231 U.S. 144, 147, 34 S.Ct. 24, 58 L.Ed. 159. These criteria are determinative of the nature of the tax in question. It is the opinion of the Court that the tax imposed by the Quebec Mining Act is not an income tax within the meaning of Section 131(a) (1) of the Revenue Act of 1936. The term “income taxes” as used therein is not sufficiently broad to embrace the tax in question. The Quebec Mining Act is not free from ambiguity; there are clauses which, when considered apart from their context," }, { "docid": "616089", "title": "", "text": "would not go to the stake to vindicate my position. But I think that my reasons for dissenting in that case, if they are cogent, apply here with somewhat greater force; for there can be even less pretense that the Authority here has been vested with any significant part of the “sovereign power of the State.” This Bridge Authority is engaged in a business of a kind which, while often conducted by state governments, has also often been conducted by privately-owned public utility companies ; I think, therefore, that it cannot be said that the Authority’s activities are “strictly governmental” (or are what my colleagues call “primary state functions”) within the doctrine of State of South Carolina v. United States, 199 U.S. 437, 26 S.Ct. 110, 50 L.Ed. 261, 4 Ann.Cas.737, and Flint v. Stone Tracy Co., 220 U.S. 107, 108, 172, 173, 31 S.Ct. 342, 55 L.Ed. 389, Ann.Cas. 1912B, 1312 — which were authoritative when Congress in 1913 first enacted what is now § 22(b) (4) — or within the doctrine of later Supreme Court decisions (if they are relevant here, which I doubt). No one would think of contending that interest on the bonds of a privately-owned utility company, operating a much-needed bridge under a franchise from a city, is tax-exempt on the ground (a) that the state or the city has delegated to the company a “traditionally governmental activity” and that thereby the company became a “political subdivision” of the state or (b) that the company, in issuing its bonds, did so “on behalf of” the city or the state; such a contention would not stand up, despite the fact that the company vicariously performs a “state” or city function for “the public welfare.” My colleagues’ position must, then, rest essentially on the city’s financial investment in the Authority. As, patently, a purchase by a city of some of the stock of such a utility company would not render the interest on its bonds immune from federal tax, the rationale of the majority opinion seems to be that here the city’s investment is such that, when" }, { "docid": "23506199", "title": "", "text": "L.Ed. 261, 4 Ann.Cas. 737] And elsewhere in the opinion, the Court, illustrating the potential evil consequences of denying the federal government the constitutional power to tax state activities which are not “strictly governmental,” said (199 U.S. at page 454, 26 S.Ct. at page 113, 50 L.Ed. 261, 4 Ann.Cas. 737): “There is a large and growing movement in the country in favor of the acquisition and management by the public of what are termed ‘public utilities,' including not merely therein the supply of gas and water, but also the entire railroad system.” Recently the Supreme Court rejected the tort liability test in favor of one perhaps more ¡generous to Congressional power. But, in ascertaining the belief and thereby the intent of Congress in 1913, we should consider the judicial test then in vogue. Doing so, it seems clear to me that Congress at that date, had it considered the subject, must have believed that there existed no constitutional barrier to a federal tax on the earnings of a state-owned corporation engaged in operating bridges and tunnels. For such a corporation could not meet the immunity-from-tort-claims test as that test was described in the South Carolina case. My colleagues underscore the fact that in that case the state instrumentalities made a large profit; they overlook the still larger profits of the Port Authority. Seeking to limit the scope of the South Carolina doctrine to instances where the business of the state’s instrumentality is “private” and “commercial,” my colleagues also suggest that that doctrine was severely modified by a brief remark made in 1909 in Murray v. Wilson Distilling Co., 213 U.S. 151, 173, 29 S.Ct. 458, 53 L.Ed. 742, a remark to my mind irrelevant here as neither it nor the Murray case had anything to do with taxation. But my colleagues neglect the subsequent significant and detailed discussion of the South Carolina doctrine in 1911 in Flint v. Stone Tracy Co., 220 U.S. 107, 108, 172, 173, 31 S.Ct. 342, 357, 55 L.Ed. 389, Ann. Cas.1912B, 1312, where, after citing the South Carolina case, the Court said: “It is" }, { "docid": "22807475", "title": "", "text": "v. Wallace, 259 U.S. 44, 42 S.Ct. 453, 66 L.Ed. 822 (attempt to regulate conduct of business of local boards of trade); Carter v. Carter Coal Co., 298 U.S. 238, 289, 56 S.Ct. 855, 80 L.Ed. 1160 (regulation of bituminous coal industry) ; United States v. Butler, 297 U.S. 1, 70, 56 S.Ct. 312, 80 L.Ed. 477, 102 A.L.R. 914 (regulation of agricultural production); Linder v. United States, 268 U.S. 5, 17-18, 45 S.Ct. 446, 69 L.Ed. 819, 39 A.L.R. 229 (regulation of the practice of a profession). Cf. United States v. Doremus, 249 U.S. 86, 39 S.Ct. 214, 63 L.Ed. 493, and Nigro v. United States, 276 U.S. 332, 48 S.Ct. 388, 72 L.Ed. 600 (both sustaining the narcotics law as a revenue measure); McCray v. United States, 195 U.S. 27, 24 S.Ct. 769, 49 L.Ed. 78, 1 Ann.Cas. 561 (sustaining a tax of ten cents per pound on oleomargarine); and Sonzinsky v. United States, 300 U.S. 506, 57 S.Ct. 554, 81 L.Ed. 772 (upholding the validity of a license tax on dealers in firearms). Nor can a taxing statute withstand constitutional challenge if, in substance and application, its real purpose is to impose a penalty for the violation of a state law, and, thus, beyond the limits of federal power. United States v. Constantine, 296 U.S. 287, 56 S.Ct. 223, 80 L.Ed. 233. See United States v. La Franca, 282 U.S. 568, 572, 51 S.Ct. 278, 75 L.Ed. 551. Sonzinsky v. United States, 300 U. S. 506, 513, 57 S.Ct. 554, 556, 81 L.Ed. 772. See Veazie Bank v. Fenno, 8 Wall., U.S., 533, 548, 19 L.Ed. 482. See Security Savings & Commercial Bank v. District of Columbia, 51 App. D.C. 316, 279 F. 185; Spreckels Sugar Refining Co. v. McClain, 192 U.S. 397, 411, 24 S.Ct. 376, 48 L.Ed. 496; Baltic Mining Co. v. Massachusetts, 231 U.S. 68, 83, 34 S.Ct. 15, 58 L.Ed. 127; Flint v. Stone Tracy Co., 220 U.S. 107, 146, 150, 31 S.Ct. 342, 55 L.Ed. 389, Ann. Cas.1912B, 1312; United States v. Whitridge, 231 U.S. 144, 34 S.Ct. 24, 58 L.Ed. 159." }, { "docid": "6538386", "title": "", "text": "of a state government when undertaken, and so not immune from federal taxation, does not change its character because of its continued exercise. Were that not so, every extension of one government into activities over which the taxing power of the other normally extended would to that extent in the course of time curtail the sources of revenue of the other which would be helpless before the encroachment. South Carolina v. United States, 199 U.S. 437, 26 S.Ct. 110, 50 L.Ed. 261, 4 Ann.Cas. 737. The petitioner’s work in furtherance of the supply of water by the city of New York as above outlined and for which he has been paid the salary taxed is not, in the light of the foregoing considerations, part of what his employer has to do to perform its necessary functions as a political subdivision of the state of New York. So the salary of the petitioner was not part of the expense attendant upon the exercise of what may be said to be usual governmental powers, Helvering v. Powers supra, or in the doing of what the states have traditionally engaged. United States v. California, supra. On the contrary, the furnishing of water has been classed as nonessential to the exercise of governmental functions. Flint v. Stone Tracy Co., 220 U.S. 107, 172, 31 S.Ct. 342, 55 L.Ed. 389, Ann.Cas.1912B, 1312; Canavan v. City of Mechanicville, 229 N.Y. 473, 128 N.E. 882, 13 A.L.R. 1123; In re Board of Water Com’rs of White Plains, 176 N.Y. 239, 68 N.E. 348; Armstrong & Latta v. Philadelphia, 249 Pa. 39, 94 A. 455, Ann. Cas. 1917B, 1082; Omaha Water Co. v. City of Omaha (C.C.A.) 147 F. 1, 12 L.R.A. (N.S.) 736, 8 Ann.Cas. 614. Being engaged in work which was a part of the proprietary, or business, activities of the city, the petitioner earned a salary which was income to him subject to federal taxation. Denman v. Commissioner (C.C.A.) 73 F.(2d) 193; Blair v. Byers (C.C.A.) 35 F.(2d) 326. Our decision in Commissioner v. Ten Eyck, 76 F.(2d) 515, was controlled by the traditional supervision" }, { "docid": "23506231", "title": "", "text": "of public office,” and in Chicago, B. & Q. R. Co. v. Iowa, 94 U.S. 155, 161, 24 L.Ed 94, said that they are “given extraordinary powers, in order that they may better serve the public. * * *” In Wolff Packing Co. v. Court of Industrial Relations of Kansas, 262 U.S. 522, 43 S.Ct. 630, 632, 67 L.Ed. 1103, 27 A.L.R. 1280, the Court, speaking of such and other “public utilities,” said they are “carried on under the authority of a public grant of privileges * * * which * * * imposes the affirmative duty of rendering a public service demanded by any member of the public.” To be sure, the category of “public utilities” can be expanded and need not consist of only those corporations which perform functions heretofore frequently discharged by governments. Cf. Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940, 89 A.L.R. 1409; Brandeis, J., dissenting in New State Ice Co. v. Liebmann, 285 U.S. 262, 52 S.Ct. 371, 76 L.Ed. 747. But the fact remains that, as observed in Flint v. Stone Tracy Co., 220 U.S. 107, 109, 31 S.Ct. 342, 55 L.Ed. 389, Ann.Cas.1912B, 1312, many such corporations engage in enterprises, beneficial to the public, in which governments have also often traditionally engaged. Here through a state investment therein of 10%. See the analogous discussion in Helvering v. Powers, 293 U.S. 214, 227, 55 S.Ct. 171, 79 L.Ed. 291, and in State of South Carolina v. United States, 199 U.S. 437, 454, 462, 463, 26 S.Ct, 110, 50 L.Ed. 261, 4 Ann.Cas. 737. Cf. Flint v. Stone Tracy Co., 220 U.S. 107, 110, 172, 31 S.Ct. 342, 55 L.Ed. 389, Ann.Cas.1912B, 1312. I shall below discuss this constitutional argument. He said: “The immunity * * * cannot be cabined within the term ‘political subdivision’ either by regulation of the Treasury or an Act of Congress. * * * If an attempt is made to tax the bonds or revenues of the Port Authoriity, the question before the Court will not be whether it is a political subdivision within" }, { "docid": "8028234", "title": "", "text": "71 A.L.R. 1260; Indian Motocycle Co. v. United States, supra, 283 U.S. [570] p. 576, 51 S.Ct. 601 [75 L.Ed. 1277]; Fox Film Corp. v. Doyal, 286 U.S. 123, 128, 52 S.Ct. 546, 76 L.Ed. 1010; Board of Trustees v. United States, 289 U.S. 48, 59, 53 S.Ct. 509, 77 L.Ed. 1025. And one of these limitations is that the state cannot withdraw sources of revenue from the federal taxing power by engaging in businesses which constitute a departure from usual governmental functions and to which, by reason of their nature, the federal taxing power would normally extend. The fact that the state has power to undertake such enterprises, and that they are undertaken for what the state conceives to be the public benefit, does not establish immunity. South Carolina v. United States, 199 U.S. 437, 26 S.Ct. 110, 50 L.Ed. 261, 4 Ann.Cas. 737; Flint v. Stone Tracy Co., 220 U.S. 107, 172, 31 S.Ct. 342, 55 L.Ed. 389, Ann.Cas.1912B, 1312; Murray v. Wilson Distilling Co., 213 U.S. 151, 173, 29 S.Ct. 458, 53 L.Ed. 742; Metcalf & Eddy v. Mitchell, supra; Indian Motocycle Co. v. United States, supra; Ohio v. Helvering, 292 U.S. 360, 368, 369, 54 S.Ct. 725, 78 L.Ed. 1307. The necessary protection of the independence of the state government is not deemed to go so far.” In deciding that the salary of a trustee of a railroad operating under a state public control act was not immune to federal taxation, the Court stated in Helvering v. Powers, supra, at page 227, 55 S.Ct. at page 174, that “the state, with its own conception of public advantage, is undertaking a business enterprise of a sort that is normally within the reach 'of the federal taxing power and is distinct from the usual governmental functions that are immune from federal taxation. in order to safeguard the necessary independence of the state.” In Brush v. Commissioner of Internal Revenue, 300 U.S. 352, 57 S.Ct. 495, 81 L.Ed. 691, 108 A.L.R. 1428, the Court held that the salary of the chief engineer of the Bureau of Water Supply of" }, { "docid": "616088", "title": "", "text": "character as well as the bonds, in question have always been regarded as exempt and have been so held by the Commissioner of Internal Revenue. Because Section 22 (b) (4) of the Revenue Act of 1938 and the Regulations applicable thereto hav'e in the opinion of the majority of this court rendered the interest on the taxpayer’s bonds exempt from income tax, we see no reason to discuss the question whether there is any constitutional prohibition against the tax and rest our opinion, as we did in the case of Commissioner v. Estate of Alexander J. Shamberg, deceased, solely upon the exemption. In both of these important litigations we have been afforded all possible aid by counsel for the Commissioner and for the taxpayers in briefs which have been kept within a most reasonable compass and have said everything which we think could have been said on behalf of the respective parties. Order affirmed. FRANK, Circuit Judge (dissenting). As I said in the companion case of Commissioner v. Estate of Shamberg, 144 F.2d 998, I would not go to the stake to vindicate my position. But I think that my reasons for dissenting in that case, if they are cogent, apply here with somewhat greater force; for there can be even less pretense that the Authority here has been vested with any significant part of the “sovereign power of the State.” This Bridge Authority is engaged in a business of a kind which, while often conducted by state governments, has also often been conducted by privately-owned public utility companies ; I think, therefore, that it cannot be said that the Authority’s activities are “strictly governmental” (or are what my colleagues call “primary state functions”) within the doctrine of State of South Carolina v. United States, 199 U.S. 437, 26 S.Ct. 110, 50 L.Ed. 261, 4 Ann.Cas.737, and Flint v. Stone Tracy Co., 220 U.S. 107, 108, 172, 173, 31 S.Ct. 342, 55 L.Ed. 389, Ann.Cas. 1912B, 1312 — which were authoritative when Congress in 1913 first enacted what is now § 22(b) (4) — or within the doctrine of later" }, { "docid": "23506232", "title": "", "text": "remains that, as observed in Flint v. Stone Tracy Co., 220 U.S. 107, 109, 31 S.Ct. 342, 55 L.Ed. 389, Ann.Cas.1912B, 1312, many such corporations engage in enterprises, beneficial to the public, in which governments have also often traditionally engaged. Here through a state investment therein of 10%. See the analogous discussion in Helvering v. Powers, 293 U.S. 214, 227, 55 S.Ct. 171, 79 L.Ed. 291, and in State of South Carolina v. United States, 199 U.S. 437, 454, 462, 463, 26 S.Ct, 110, 50 L.Ed. 261, 4 Ann.Cas. 737. Cf. Flint v. Stone Tracy Co., 220 U.S. 107, 110, 172, 31 S.Ct. 342, 55 L.Ed. 389, Ann.Cas.1912B, 1312. I shall below discuss this constitutional argument. He said: “The immunity * * * cannot be cabined within the term ‘political subdivision’ either by regulation of the Treasury or an Act of Congress. * * * If an attempt is made to tax the bonds or revenues of the Port Authoriity, the question before the Court will not be whether it is a political subdivision within the meaning of the regulations or the Act, but whether the functions burdened by the tax are of a type immune from taxation. * * * There is no reason to believe that the Supreme Court of the United States will at any time countenance the destruction of the essential sovereignty of the state through Federal taxation of the revenues or the borrowing power of the state, its political subdivisions, or public instrumentalities.” (Emphasis added.) I shall discuss below the rulings of the Commissioner of Internal Revenue and try to show that they were neither authoritative nor consistent. As the discussion of this test and its application covers three pages of the opinion, I think my colleagues err in their cavalier treatment of it. At the time of the South Carolina decision, cities were, in many states, held immune from tort claims only in the conduct of a very limited kind of activities, like police protection and fire prevention. The immunity was later broadened by decisions in many jurisdictions; but those later decisions are irrelevant," }, { "docid": "8028233", "title": "", "text": "in a state hospital was subject to a federal tax. The decision in the Liggett Case was affirmed in the Supreme Court, 299 U.S. 383, 57 S.Ct. 239, 81 L.Ed. 294, without deciding whether the Court of Claims was correct in its finding that the State of Massachusetts, in establishing and maintaining the hospital referred to, was not exercising any sovereign power. The decision in the Good-ale Case then cited with approval the decision in Mallory v. White, supra, and ruled that the salary of the superintendent of the Buffalo City Hospital was exempt from federal taxation because “this hospital is an instrumentality of a political subdivision of the state, engaged in an essential governmental function.” Later, the Supreme Court in Helvering v. Powers, 293 U.S. 214, 225, 55 S.Ct. 171, 173, 79 L.Ed. 291, stated: “The principle of immunity thus has inherent limitations. Metcalf & Eddy v. Mitchell, supra, 269 U.S. [514] pp. 522-524, 46 S.Ct. 172 [70 L.Ed. 384]; Willcuts v. Bunn, 282 U.S. 216, 225, 226, 51 S.Ct. 125, 75 L.Ed. 304, 71 A.L.R. 1260; Indian Motocycle Co. v. United States, supra, 283 U.S. [570] p. 576, 51 S.Ct. 601 [75 L.Ed. 1277]; Fox Film Corp. v. Doyal, 286 U.S. 123, 128, 52 S.Ct. 546, 76 L.Ed. 1010; Board of Trustees v. United States, 289 U.S. 48, 59, 53 S.Ct. 509, 77 L.Ed. 1025. And one of these limitations is that the state cannot withdraw sources of revenue from the federal taxing power by engaging in businesses which constitute a departure from usual governmental functions and to which, by reason of their nature, the federal taxing power would normally extend. The fact that the state has power to undertake such enterprises, and that they are undertaken for what the state conceives to be the public benefit, does not establish immunity. South Carolina v. United States, 199 U.S. 437, 26 S.Ct. 110, 50 L.Ed. 261, 4 Ann.Cas. 737; Flint v. Stone Tracy Co., 220 U.S. 107, 172, 31 S.Ct. 342, 55 L.Ed. 389, Ann.Cas.1912B, 1312; Murray v. Wilson Distilling Co., 213 U.S. 151, 173, 29 S.Ct. 458, 53" }, { "docid": "11973915", "title": "", "text": "of their land, they would to the extent of such payment be deprived of the just compensation secured to them by the Fifth Amendment to the Constitution of the United States, and by a similar provision of the Constitution of Louisiana (Const. 1921, art. 1, § 2); and further alleged that the exemption provided by section 112(f) of the Revenue Act of 1928, 45 Stat. 817 (26 USCA § 2112(f), was unavailable to them for the reason that there was no other land which they could purchase with the money they received from the sale similar to that which was acquired from them by the city. The district judge sustained exceptions of no cause of action, and dismissed the petition. Flom that judgment this appeal is taken. It is of course true that the instrumentalities of the states are exempt from taxation. Willcuts v. Bunn, 282 U. S. 216, 51 S. Ct. 125, 75 L. Ed. 304, 71 A. L. R. 1260. Appellants argue that they are entitled to invoke this well-established principle of constitutional law for their own benefit, and cite in support of their position the Supreme Court eases of Gillespie v. Oklahoma, 257 U. S. 501, 42 S. Ct. 171, 66 L. Ed. 338; Panhandle Oil Co. v. Mississippi, 277 U. S. 218, 48 S. Ct. 451, 56 A. L. R. 583; Indian Motocycle Co. v. United States, 283 U. S. 570. 51 S. Ct. 601, 75 L. Ed. 1277; Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 52 S. Ct. 443, 76 L. Ed. 815. In opposition to the contention of appellants the government relies principally on the following Supreme Court decisions: Metcalf & Eddy v. Mitchell, 269 C. S. 514, 46 S. Ct. 172, 70 L. Ed. 384; Lucas v. Howard, 280 U. S. 526, 50 S. Ct. 87, 74 L. Ed. 593; Lucas v. Reed, 281 U. S. 699, 50 S. Ct. 352, 74 L. Ed. 1125; Group No. 1 Oil Corp. v. Bass, 283 U. S. 279, 51 S. Ct. 432, 75 L. Ed. 1032. It would serve no useful" }, { "docid": "8611106", "title": "", "text": "or a manufacturing corporation. Its activities must not, therefore, be measured by the same standard. The appellant was organized to draw into a single possession the various interests in the land, to clear the title, to enter into an oil and gas lease, to receive the royalties, to determine whether they should be collected in cash or in kind, and, by reasonable implication, to enforce the terms of the lease that the corporation might enjoy the ultimate benefit therefrom, and to distribute the surplus profits to the shareholders. It did precisely this. Moreover, it executed various rights of way over the land in favor of third persons. With a full knowledge of all this, we must decline to say that Section Seven Corporation, in doing what it was organized to do, was not doing business. It is our opinion that the cases of McCoach v. Mincliill Railway Co., supra, and United States v. Emery, supra, are sufficiently distinguishable upon the facts as not to be binding here. In any event, their authority is to be very narrowly limited in view of the later expressions of the Supreme Court in the more realistic and practical decision in Edwards v. Chile Copper Co., supra. Under Article 42 of Regulations 64, which is both applicable and valid (Magruder v. Washington B. & A. Realty Corp., 316 U.S. 69, 72, 73, 62 S.Ct. 922, 86 L.Ed. 1278), and the decisions, we conclude that the appellant was doing business under the terms of Section 601(a) of the Revenue Act of 1938, supra, and was liable to pay the tax assessed thereunder. Flint v. Stone Tracy Co. (Clark Iron Co. case), 220 U.S. 107, 170, 171, 31 S.Ct. 342, 55 L.Ed. 389, Ann.Cas. 1912B, 1312; Edwards v. Chile Copper Co., 270 U.S. 452, 455, 46 S.Ct. 345, 70 L.Ed. 678; United States v. Hercules Min. Co., 9 Cir., 119 F.2d 288, 291; Chemung Iron Co. v. Lynch, 8 Cir., 269 F. 368, 370-371. The judgment of the District Court is affirmed. Regulations 64 (1938 edition): . “Art. 41. Nature and rate of tax.— The tax is" }, { "docid": "8878631", "title": "", "text": "the exemption of the compensation paid by banks to their liquidators out of their own funds, any more than it exempts the salaries and wages, paid to the officers, agents, and employees of the bank who are employed or retained in its service by and under the liquidator. I do not believe my associates would extend the exemption this far. I have difficulty in making flesh of one and fowl of the other when ail are engaged to the same end, in liquidating the bank, all are under the satne general supervision and control of the state Comptroller, and all are paid from the same source. It will avail nothing to point out that the supervision and liquidation of banks is a governmental function .and the Comptroller an officer of the state, discharging that function. The liquidator is not an officer of, he draws no salary from, the state. He merely undertakes for and under the appointment of a Comptroller, as a court receiver does for and under the appointment of a court, to handle specific matters of conservation and liquidation when appointed to do so. It will serve no purpose to cite or discuss the great number of authorities according or denying exemption on varying states of facts. It is sufficient to say they all agree upon the principle that where the effect of the tax upon the state is regarded as immediate and direct there is immunity; where it is regarded as remote and indirect there is none. Illustrative cases discussing the principle and assembling the authorities are: Helvering v. Powers, 293 U.S. 214, 55 S.Ct. 171, 79 L.Ed. 291; Burnet v. A. T. Jergins Trust, 288 U.S. 508, 53 S.Ct. 439, 77 L.Ed. 925; Metcalf & Eddy v. Mitchell, Administratrix, 269 U.S. 514, 46 S.Ct. 172, 70 L.Ed. 384; Register v. Commissioner (C.C.A.) 69 F.(2d) 607, 93 A.L.R. 186; Fox Film Corporation v. Doyal, 286 U.S. 123, 52 S.Ct. 546, 76 L.Ed. 1010; Liggett & Meyers Tobacco Co. v. United States, 57 S.Ct. 239, 81 L.Ed. -, decided January 4, 1937. I think the Board rightly denied" } ]

[ { "docid": "749445", "title": "", "text": "As we have noted above, a complaint that alleges a § 1983 conspiracy must allege, with some degree of particularity, the overt acts allegedly committed by defendants to promote the alleged conspiracy. See § II, supra. Moreover even if we were to consider plaintiff’s action as one grounded in defamation we would still have to dismiss the complaint. N.Y.C.P.L.R. § 3016(a) requires the plaintiff in a slander action to set forth the particular words of which complaint is made. If plaintiff fails to do so, the complaint must be dismissed. See Catterson v. Caso, 472 F.Supp. 833, 840 (E.D.N.Y.1979). Since plaintiff has not set forth the words that caused the alleged defamation, the complaint must be dismissed. In summary, all of plaintiff’s claim from 1968 to 1974 is time barred. Plaintiff’s claim of defamation allegedly occurring in 1980 is too vague to state a cause of action. The entire complaint fails to comply with F.R.Civ.P. 8(a) and thus must be dismissed pursuant to F.R.Civ.P. 12(b)(6). Moreover, this court lacks subject matter jurisdiction to entertain plaintiff’s claim against the F.B.I. Ordinarily when a complaint is dismissed for failure to comply with Rule 8(a), plaintiff is given leave to replead. However, in the instant action plaintiff has already filed an amended complaint. This action is therefore dismissed with prejudice. . The Federal Bureau of Investigation may not be sued in its own name. Plaintiff amended her complaint to include the United States of America as a defendant. However, for purposes of identification we shall use the F.B.I. See Blackmar v. Guerre, 342 U.S. 512, 515, 72 S.Ct. 410, 96 L.Ed. 534 (1952). . Fed.R.Civ.P. 15 allows an amended complaint to be made once as a matter of course as long as no responsive pleading has been filed. A motion to dismiss a complaint under Rule 12 is not a responsive pleading. Christophides v. Porco, 289 F.Supp. 403 (S.D.N.Y.1968). . The complaint does not detail the subject of plaintiffs testimony nor the action in which the testimony was given. . The following is an example of plaintiffs complaint: (n) On April 2, 1974" } ]

[ { "docid": "12288261", "title": "", "text": "the omitted EEOC charge. In sum, plaintiff’s diligence in pursuing his claim and his reasonable reliance on an inadequate pleading form provided by the Pro Se Office of the Court would justify an equitable tolling of the ninety-day filing period so that plaintiff might amend his complaint to bring it into full compliance with the pleading requirements of the Federal Rules. B. Nielsen’s Cross-Motion for Leave to Amend The above rejection of defendant’s arguments for dismissing the complaint with prejudice similarly disposes of much if not all of Flower’s opposition to plaintiff’s cross-motion for leave to amend the complaint. Plaintiff cross-moves for leave to amend the complaint to add the contents of the EEOC charge he failed to attach to the original pleading. At the time plaintiff cross-moved (as is still the case), defendant had not yet filed a responsive pleading, and therefore plaintiff could still amend the complaint once as a matter of right. See Rule 15(a), Fed.R.Civ.P.; Chodos v. Federal Bureau of Investigation, 559 F.Supp. 69, 70 n. 2 (S.D.N.Y.), aff'd mem., 697 F.2d 289 (2d Cir.1982); 6 Wright & Miller § 1483 at 411-12. Even if a responsive pleading had been filed, in which case plaintiff would require leave of the Court to amend the complaint, Rule 15(a) makes clear that such “leave shall be freely given when justice so requires.” Defendant’s sole argument in opposition to the proposed amendment is that, because the original complaint did not include a “short and plain statement of the claim” as required by Rule 8(a)(2), Fed.R.Civ.P., it is not an “original pleading” to which a subsequent amendment could relate back under Rule 15(c), Fed.R.Civ.P. See Baldwin County, supra, 466 U.S. at 149-50, 104 S.Ct. at 1724-25. Under these circumstances, defendant impliedly argues, plaintiffs proposed amendment must be denied because it would be futile. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Raster v. Modification Systems, Inc., 731 F.2d 1014, 1018 (2d Cir.1984). Since the Court disposed of the substance of this argument in ruling above on defendant’s motion to dismiss, it need" }, { "docid": "22170793", "title": "", "text": "the adverse party; and leave shall be freely given when justice so requires.” Id. At the time that plaintiffs moved to amend their complaint, defendants had not filed an answer. Defendants’ motion to dismiss, because it was a motion, not a pleading, was not a “responsive pleading” within the meaning of Rule 15(a). See Barbara v. New York Stock Exch., Inc., 99 F.3d 49, 56 (2d Cir.1996). The threshold question, therefore, is whether the district court was required to accept the proposed amended complaint because the plaintiffs were allowed by the first sentence of Rule 15(a) to amend the complaint as a matter of course. We conclude that the district court, because of the effect of Rule 16(b), was not so required. Although Rule 15(a) governs the amendment of pleadings, Rule 16(b) also may limit the ability of a party to amend a pleading if the deadline specified in the scheduling order for amendment of the pleadings has passed. See Fed.R.Civ.P. 16(b). Under Rule 16(b), a party may obtain a modification of the scheduling order only “upon a showing of good cause.” Id. The record in this case shows that plaintiffs filed their cross-motion to amend the complaint on March 4, 2005, more than one month after February 1, 2005, the date specified in the Rule 16(b) scheduling order as the final date for amendment of the pleadings. In Parker, we addressed the relationship between the standard imposed by the second sentence of Rule 15(a), ie., the “freely given when justice so requires” standard, and the “good cause” standard of Rule 16(b). 204 F.3d at 339-40. We held in Parker that a district court, despite the standard of the second sentence of Rule 15(a), does not abuse its discretion in denying leave to amend the pleadings where the moving party has failed to establish good cause, as required by Rule 16(b), to amend the pleadings after the deadline set in the scheduling order. Id. We stated with respect to the Rule 16(b) standard, “ ‘good cause’ depends on the diligence of the moving party.” Id. at 340 (quoting Fed.R.Civ.P. 16(b))." }, { "docid": "12288264", "title": "", "text": "the original pleading by providing supporting facts for plaintiff’s claim of a discriminatory failure to hire. Inasmuch as the additional allegations contained in the EEOC charge relate to the same “occurrence ... [that plaintiff] attempted to ... set forth in the original pleading,” they could properly be deemed to relate back to the filing of the original complaint. See Rule 15(c), Fed.R.Civ.P. Under the doctrine of equitable tolling, however, it is not even necessary to apply the relation-back rule. By tolling the Title VII filing period to permit plaintiff to file an amended complaint, the Court effectively disregards the original complaint and allows the amendment to be treated as an initial pleading for Title VII filing purposes. Under this application of the tolling doctrine, it becomes irrelevant whether the amended complaint “relate[s] back” to the original pleading under Rule 15(c), Fed.R.Civ.P. Under all the circumstances, plaintiff plainly should be given the opportunity to amend the complaint along the lines he has proposed. CONCLUSION For the reasons stated above, the Court concludes that plaintiff commenced the in stant Title VII action in a timely manner by presenting his complaint to the Pro Se Office of the Court within the statutory period. Even if plaintiff were deemed not to have properly commenced the action by filing the complaint in question, however, the Court concludes that the circumstances of this case justify an equitable tolling of the statutory filing period to permit plaintiff to serve and file an amended complaint that fully complies with the pleading requirements of the Federal Rules. Accordingly, defendant's motion is denied and plaintiffs cross-motion is granted. The Clerk of the Court is directed to docket and file the amended complaint plaintiff originally submitted to the Court with his cross-motion for leave to amend. In the event plaintiff did not serve defendant with a complete copy of the amended pleading at the time he served and filed his cross-motion, he is directed to do so no later than July 24, 1986. The parties shall complete discovery by September 12, 1986 and file a joint pretrial order by October 10," }, { "docid": "13615344", "title": "", "text": "belief when facts are peculiarly within opposing party’s knowledge). The statement of facts is necessary to apprise the Defendant fairly of the charges made against him so that he can prepare a sufficient answer to the allegations. O.P.M., 32 B.R. at 203. Thus, Plaintiffs have also not pleaded fraud with sufficient particularity in accordance with Fed.R.Civ.P. 9(b) as to the thirteenth and fourteenth claims for relief. By reason of all the foregoing, Debtor’s motion to dismiss the seventh, eighth, ninth, eleventh, thirteenth, and fourteenth claims for relief is granted. Plaintiffs’ Cross-Motion Complaints that are dismissed under Fed.R.Civ.P. Rules 8, 9(b) and 12(b)(6) are “almost always” dismissed with leave to amend. In re Kelton Motors, Inc., 121 B.R. 166 (Bankr.D.Vt.1990) (citing Luce v. Edelstein, 802 F.2d 49, 56 (2d Cir.1986). Pursuant to Rule 15, “[a] party may amend his pleading [after a responsive pleading has been filed] only by leave of the court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” Fed. R.Civ.P. 15(a). Moreover, “[w]henever the claim ... asserted in the amended pleadings arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.” Fed.R.Civ.P. 15(c). Since the Debtor will not be unduly prejudiced by an amendment to the complaint, relation back is proper. Plaintiffs’ cross-motion to amend the complaint is granted conditioned upon their serving upon the attorney for the Debtor and filing with this Court an amended complaint within twenty days from the date of the entry of an order consistent with this opinion. The Clerk of the Court is directed to mail a copy of said order to the attorneys for the Plaintiffs and the Debtor at the time such order is entered. SUBMIT AN ORDER CONSISTENT WITH THIS OPINION. . Section 523(a)(4) refers to debts excepted from discharge for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny. . Section 523(a)(5) refers to debts excepted from discharge, in pertinent part, to a spouse," }, { "docid": "22540832", "title": "", "text": "“without prejudice” on the basis of pleading inadequacies that could be rectified with little effort by amendment. Moreover, Goode’s argument that he “was not afforded the ability to amend his complaint,” Appellant’s Br. 49, rings hollow, as he never attempted to amend his complaint and never sought leave to do so (even assuming he needed to seek leave after a dismissal without prejudice of the original complaint). Had he sought leave to amend, the district court surely would have granted this motion, given the liberal standard that governs a request to amend a complaint under Federal Rule of Civil Procedure 15(a)(2). See Fed.R.Civ.P. 15(a)(2) (“The court should freely give leave when justice so requires.”); Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Galustian v. Peter, 591 F.3d 724, 729 (4th Cir.2010) (“It is this Circuit’s policy to liberally allow amendment in keeping with the spirit of Federal Rule of Civil Procedure 15(a).”). Goode also was not barred from amending his complaint by any statute of limitations, as an amended complaint would have related back to the date that the original complaint had been filed. See Fed.R.Civ.P. 15(c)(1)(B) (“An amendment to a pleading relates back to the date of the original pleading when: ... the amendment asserts a claim or defense that arose out of the conduct, transaction; or occurrence set out — or attempted to be set out — in the original pleading.”). Similarly, Goode’s decision not to amend the complaint did not itself render the order of dismissal final and appealable. To be sure, we recognized in Chao that a court assessing appellate jurisdiction may consider whether a plaintiff has chosen to “stand on the complaint,” treating the order as final and appealable rather than seeking amendment in the district court. See 415 F.3d at 345. As part of its case-specific jurisdictional analysis, the Court in Chao considered such a decision by the plaintiff-appellant, and the Court ultimately concluded that it had appellate jurisdiction in that case. Id. at 345-46. Yet Chao does not stand for the general proposition that a plaintiff may" }, { "docid": "2546695", "title": "", "text": "her motion. Defendants ask the court to treat the motion under Fed.R.Civ.P. 41(a)(2) and to dismiss the claim with prejudice. Rule 41(a)(2) governs a plaintiff’s attempt to dismiss an entire “action,” not a single claim from an action. A motion to dismiss voluntarily a single claim in a multi-count complaint is more properly treated as an amendment to the original complaint under Fed.R.Civ.P. 15(a). See Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1392 (9th Cir.1988); Gronholz v. Sears, Roebuck and Co., 836 F.2d 515, 517-18 (Fed.Cir.1987); Management Investors v. United Mine Workers, 610 F.2d 384, 393-94 & n. 22 (6th Cir.1979); see also 9 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2362 at 31 (Supp.1997) (“Rule 41(a) applies only to the dismissal of all claims in an action. A plaintiff who wishes to drop some claims but not others should do so by amending his complaint pursuant to Rule 15.”). Rule 15(a) provides that after a responsive pleading has been served a “party may amend the party’s pleading only by leave of court, or by written consent of the adverse party; and leave shall be freely given when justice so requires.” Although the language of Rule 15(a) does not speak of imposing conditions on a party’s ability to amend a complaint, “[t]he statement in Rule 15(a) that ‘leave shall be freely given when justice so requires’ presupposes that the court may use its discretion to impose conditions on the allowance of a proposed amendment as an appropriate means of balancing the interests of the party seeking the amendment and thosé of the party objecting to it.” 6 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 1486 at 605 (1990). Because Bibbs did not move to withdraw her ADA claim until after defendants moved for summary judgment, it would not be fair at this point to leave open even a remote possibility that defendants might face this claim in some other forum. Accordingly, plaintiff’s complaint will be deemed amended to delete Count II on the condition that Count II is dismissed with prejudice." }, { "docid": "12288262", "title": "", "text": "F.2d 289 (2d Cir.1982); 6 Wright & Miller § 1483 at 411-12. Even if a responsive pleading had been filed, in which case plaintiff would require leave of the Court to amend the complaint, Rule 15(a) makes clear that such “leave shall be freely given when justice so requires.” Defendant’s sole argument in opposition to the proposed amendment is that, because the original complaint did not include a “short and plain statement of the claim” as required by Rule 8(a)(2), Fed.R.Civ.P., it is not an “original pleading” to which a subsequent amendment could relate back under Rule 15(c), Fed.R.Civ.P. See Baldwin County, supra, 466 U.S. at 149-50, 104 S.Ct. at 1724-25. Under these circumstances, defendant impliedly argues, plaintiffs proposed amendment must be denied because it would be futile. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Raster v. Modification Systems, Inc., 731 F.2d 1014, 1018 (2d Cir.1984). Since the Court disposed of the substance of this argument in ruling above on defendant’s motion to dismiss, it need not tarry long on the issue as recast here. In the previous discussion, the Court rejected defendant’s reading of a footnote in Baldwin County that, if broadly construed, would suggest that whenever an original complaint fails to state a claim under Rule 12(b)(6), Fed.R.Civ.P., a subsequent amendment designed to cure the defect will not be allowed to relate back under Rule 15(c), Fed.R.Civ.P. Thus, the Court held, the complaint plaintiff presented to the Pro Se Office in July 1985 — although admittedly deficient under Rule 12(b)(6) — was adequate to commence the instant Title VII action and susceptible to “cure” by subsequent amendment. Even assuming plaintiff’s original complaint were deemed “fatally” defective, however, the Court held above that equitable principles would justify tolling the Title VII filing period to permit plaintiff to file an amended complaint that complies fully with the pleading requirements of the Federal Rules. Under either branch of the Court’s analysis, plaintiff’s proposed amendment is not futile. The EEOC charge plaintiff seeks to add to the complaint would cure the defects of" }, { "docid": "12288250", "title": "", "text": "from those presented to the Supreme Court in that case. Defendant’s attack upon the sufficiency of the complaint is not entirely unfounded, however. As the Supreme Court observed in Baldwin County, “the Federal Rules ... do not require a claimant to set forth an intricately detailed description of the asserted basis for relief” in order to satisfy the general pleading standard for civil actions brought in federal court. 466 U.S. at 149-50 n. 3, 104 S.Ct. at 1724-25 n. 3. Nonetheless, it is well established in this Circuit, as elsewhere, that a plaintiff seeking to bring an employment discrimination or other civil rights action cannot rest on naked assertions or conclusory allegations of discrimination, but must plead some concrete, supporting facts in order to state a claim under Rule 12(b)(6), Fed.R.Civ.P. See Martin v. New York State Dep’t of Mental Hygiene, 588 F.2d 371, 372 (2d Cir.1978) (per curiam); Richards v. New York State Dep’t of Correctional Services, 572 F.Supp. 1168, 1174 (S.D.N.Y.1983); Morpurgo v. Board of Higher Education, 423 F.Supp. 704, 711 (S.D.N.Y.1976). While the complaint in the instant case indicates the general nature of plaintiff’s grievance against Flower, it may legitimately be attacked under Rule 12(b)(6). The pleading provides no details of the circumstances under which Flower allegedly denied plaintiff employment, nor does it suggest plaintiff’s reason(s) for concluding that defendant denied him a position because of his race. On a simple motion to dismiss for failure to state a claim, therefore, the Court almost assuredly would grant the motion with leave to plain tiff to file an amended complaint curing the deficiencies of the original pleading. The Court rejects defendant’s argument, however, that the complaint should be dismissed without leave to replead, on the ground that its defects are so fundamental that it cannot be viewed as an “original pleading” to which any subsequent amendment could relate back under Rule 15(c), Fed.R.Civ.P. Defendant’s argument, and the broad reading of Baldwin County on which it is based, run counter to fundamental policies of both Congress and the courts. Absent some indication in Baldwin County to the contrary, this" }, { "docid": "12288246", "title": "", "text": "County. In contrast to a bare right-to-sue letter, the complaint filed here gave defendant actual notice that a Title VII claim was being brought against it, one of the Supreme Court’s central concerns in Baldwin County. Strong policies weigh heavily against reading the Supreme Court’s holding in that case to extend beyond its facts to the complaint at issue here. Furthermore, even if the complaint were deemed not to have properly commenced a Title VII action, the circumstances of this case present ample justification for tolling the statutory filing period to allow plaintiff to serve and file an amended complaint. 1. Adequacy of Complaint to Commence Action In Baldwin County, the Supreme Court made clear that Title VII actions hold no “special status under the [Federal] Rules of Civil Procedure,” 466 U.S. at 150, 104 S.Ct. at 1725, and therefore can only be commenced by the filing of a complaint as provided in Rule 3, Fed.R.Civ.P. The right-to-sue letter before it could not be considered a complaint within the contemplation of Rule 3, the Court held, because it lacked the basic ingredients of a pleading, including “a short and plain statement of the [plaintiff’s] claim,” Rule 8(a)(2), Fed.R. Civ.P. In discussing the applicability of Rule 15(c), Fed.R.Civ.P., the Court noted further that the right-to-sue letter could not be treated as an “original pleading” to which subsequent amendments could relate back because it had not given the defendant “ ‘fair notice of what the plaintiff’s claim [was] and the grounds upon which it rest[ed].’ ” 466 U.S. at 149-50 n. 3, 104 S.Ct. at 1724-25 n. 3 (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). Indeed, it would appear that the defendant in Baldwin County first received notice of the plaintiff’s Title VII claim when it was served with an “amended complaint” drafted and filed by counsel who subsequently appeared for the plaintiff in that action. See 466 U.S. at 157, 104 S.Ct. at 1728 (Stevens, J., dissenting). The complaint plaintiff presented to the Pro Se Office of this Court on July 29,1985" }, { "docid": "12288243", "title": "", "text": "its face that it was received by the Pro Se Office on July 29, 1985, and that it was accompanied by an IFP application. Thus, assuming plaintiff had received the Notice of Right to Sue from the EEOC on May 7, 1985, he presented a Title VII complaint to the Pro Se Clerk no later than eighty-three days thereafter, or within the ninety-day filing period prescribed by the statute. Defendant argues, however, that the complaint plaintiff presented to the Pro Se Office on July 29, 1985 does not meet the pleading requirements of Rule 8, Fed.R. Civ.P., and therefore could not properly have “commenced” a civil action either within the meaning of Rule 3, Fed.R. Civ.P., or for purposes of the ninety-day filing requirement for Title VII actions. Furthermore, defendant argues, the defects) in the original complaint cannot now be cured by the filing of an amended or substitute pleading because there is no “original pleading” to which the amendments) could “relate[] back” within the meaning of Rule 15(c), Fed.R.Civ.P. In support of its argument, defendant relies principally on Baldwin County Wel come Center v. Brown, 466 U.S. 147, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) 9per curiam). In that case, the United States Supreme Court held that the filing of a right-to-sue letter with a district court does not in itself “toll” the ninety-day filing period for Title VII actions or otherwise satisfy the statutory filing requirement. A Title VII suit, like any other civil action brought in federal court, can only be commenced by the filing of a complaint, the Supreme Court stated. 466 U.S. at 149; see also Rule 3, Fed.R.Civ.P. The right-to-sue letter that the pro se plaintiff in Baldwin County had presented to the district court was not a complaint, the Court held, because it did not contain, inter alia, “a short and plain statement of the claim showing that the pleader is entitled to relief,” as required under Rule 8(a)(2), Fed.R. Civ.P. Baldwin County, supra, 466 U.S. at 149, 104 S.Ct. at 1724. Therefore, the Court concluded, the plaintiff’s filing of the right-to-sue letter" }, { "docid": "18884247", "title": "", "text": "Act of 1964, 42 U.S.C. § 2000e et seq. which amounts to ratification of unconstitutional discrimination in violation of the due process and equal protection clauses of the Fourteenth Amendment; and, that the order deprives plaintiffs of their rights under the Public Holding Company Act of 1935, 15 U.S.C. § 79 et seq. On March 4, 1975, defendants Wiggins, Kimbrough, Spinks, Barber and Pafford filed their motion to dismiss for failure to state a claim upon which relief can be granted. The complaint in this case was filed on February 7, 1975, and served on defendant Georgia Power on February 12, 1975. On February 13, 1975, Georgia Power moved to dismiss the complaint under Rule 12(b)(6) and on February 24, 1975, plaintiffs filed a brief in opposition to the motion to dismiss and a pleading styled “Amended Complaint.” The “Amended Complaint” realleges the matters in the original complaint, incorporates by reference the exhibits attached to the original complaint, and alleges additional facts as to events occurring after the events covered by the original complaint in support of additional relief. The “Amended Complaint” alleges some additional violations of law alleged to have resulted from the promulgation of a separate order of the Commission. Plaintiffs move for default judgment against all defendants for failing to respond to the “Amended Complaint,” and Georgia Power moves to strike the “Amended Complaint” because it is in reality a supplemental pleading which requires leave of Court to be filed and no such permission was granted. A default judgment may be obtained by application to the Court upon the failure of any party to plead or otherwise defend as provided by the Federal Rules of Civil Procedure. Rule 55, F.R.C.P. A party may amend his pleading once as a matter of course any time before a responsive pleading is served; otherwise, a party may amend his pleading only by leave of court or by written consent of the adverse party, and leave shall be freely given when justice so requires. Rule 15, F.R.C.P. Upon motion of a party, the Court may upon such terms as are just" }, { "docid": "21394788", "title": "", "text": "claims against non-moving defendants Stokes and Alvelo should be dismissed pursuant to Section 1915(d). 2. Plaintiffs Cross-Motion for Partial Summary Judgment Additionally, this Court finds that Ces-pedes’ cross-motion for partial summary judgment with respect to defendant Stokes should be denied. To reiterate, summary judgment is appropriate where a court finds that no disputed issue of material fact exists. Knight, 804 F.2d at 11. For the reasons described above, this Court finds that Cespedes pleadings’ rely upon a frivolous legal theory with respect to his federal claims. Accordingly, this Court finds that Cespedes’ cross-motion for summary judgment should be denied. C. Plaintiffs Motion to Amend his Complaint Cespedes’ initial pro se Complaint contained claims against nine defendant prison officials based not only on Section 1983, but also on state claims for, inter alia, “physical and psychic suffering” and “emotional distress.” (Complaint at 3.) Cespedes now seeks to amend that Complaint, substituting one drafted by counsel which eliminates his state law claims and which directs his Section 1983 action against just four defendants: Stokes, Alvelo, Keane and Orengo. Cespedes claims that the amended Complaint would “simply restate[] the legal theories and facts asserted in the pro se pleading.” (Pltf.Partial SJ Memo at 8.) Defendants oppose Cespedes’ motion to amend his Complaint. (Memorandum of Law in Opposition to Plaintiffs Cross-Motion for Partial Summary Judgment and in Partial Opposition to Plaintiffs Motion to Amend Complaint, Cespedes v. Coughlin, 90 Civ. 2667 (Dec. 7, 1992).) Magistrate Judge Grubin recommends that this Court deny plaintiff’s motion to amend his Complaint. (Report at 9.) Federal Rule of Civil Procedure (“Rule”) 15(a) permits a party to amend its pleadings after his adversary has filed a responsive pleading “only by leave of court ... and leave shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a). Because Rule 15(a) is broadly written to permit liberal pleading amendments, a “court may not impose arbitrary restrictions on the availability of amendments or use its discretion in a way that undermines the basic policy of the rule.” 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure" }, { "docid": "12288260", "title": "", "text": "relied on a form complaint now acknowledged to be inadequate on its face. Cf. Martinez v. Orr, 738 F.2d 1107, 1110-12 (10th Cir.1984) (equitable tolling doctrine applied where plaintiff reasonably misinterpreted ambiguous EEOC right-to-sue letter); but cf. also Birge v. Delta Air Lines, Inc., 597 F.Supp. 448, 456-57 (N.D.Ga.1984) (district court’s acceptance of right-to-sue letter and affidavit for filing, and subsequent “inaction,” held not to have “ratified” plaintiff’s actions or “lulled” plaintiff into not filing timely complaint so as to warrant equitable tolling of statutory filing period). Nor has plaintiff here failed to act diligently to preserve his claim. He presented the form complaint to the Pro Se Office within the statutory period. After being granted IFP status, plaintiff promptly sought the assistance of the United States Marshal’s Office to effect service on defendant as provided in Rule 4(c)(2)(B)(i), Fed.R.Civ.P. Having received notice by way of defendant’s motion to dismiss that the complaint arguably was defective, plaintiff cross-moved for leave to amend the pleading and provided the Court at that time with a copy of the omitted EEOC charge. In sum, plaintiff’s diligence in pursuing his claim and his reasonable reliance on an inadequate pleading form provided by the Pro Se Office of the Court would justify an equitable tolling of the ninety-day filing period so that plaintiff might amend his complaint to bring it into full compliance with the pleading requirements of the Federal Rules. B. Nielsen’s Cross-Motion for Leave to Amend The above rejection of defendant’s arguments for dismissing the complaint with prejudice similarly disposes of much if not all of Flower’s opposition to plaintiff’s cross-motion for leave to amend the complaint. Plaintiff cross-moves for leave to amend the complaint to add the contents of the EEOC charge he failed to attach to the original pleading. At the time plaintiff cross-moved (as is still the case), defendant had not yet filed a responsive pleading, and therefore plaintiff could still amend the complaint once as a matter of right. See Rule 15(a), Fed.R.Civ.P.; Chodos v. Federal Bureau of Investigation, 559 F.Supp. 69, 70 n. 2 (S.D.N.Y.), aff'd mem., 697" }, { "docid": "12288244", "title": "", "text": "defendant relies principally on Baldwin County Wel come Center v. Brown, 466 U.S. 147, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) 9per curiam). In that case, the United States Supreme Court held that the filing of a right-to-sue letter with a district court does not in itself “toll” the ninety-day filing period for Title VII actions or otherwise satisfy the statutory filing requirement. A Title VII suit, like any other civil action brought in federal court, can only be commenced by the filing of a complaint, the Supreme Court stated. 466 U.S. at 149; see also Rule 3, Fed.R.Civ.P. The right-to-sue letter that the pro se plaintiff in Baldwin County had presented to the district court was not a complaint, the Court held, because it did not contain, inter alia, “a short and plain statement of the claim showing that the pleader is entitled to relief,” as required under Rule 8(a)(2), Fed.R. Civ.P. Baldwin County, supra, 466 U.S. at 149, 104 S.Ct. at 1724. Therefore, the Court concluded, the plaintiff’s filing of the right-to-sue letter within the statutory period had not properly “commenced” a Title VII action, and the ninety-day filing requirement had not been met. In a footnote, the Supreme Court further observed that the plaintiff’s subsequent filing of an amended complaint had not cured the pleading defects in the right-to-sue letter because the letter was not an “original pleading” to which a later amendment could “relate[] back” under Rule 15(c), Fed.R.Civ.P. Baldwin County, supra, 466 U.S. at 149-50 n. 3, 104 S.Ct. at 1724-25 n. 3. Finding no justification in the record for equitably tolling the statutory filing period, the Supreme Court reversed the judgment of the circuit court, which had held that the plaintiff’s filing of a right-to-sue letter had tolled the ninety-day filing requirement. Id. at 151-52, 104 S.Ct. at 1725-26. The Court rejects defendant’s implicit argument that the Supreme Court’s decision in Baldwin County mandates dismissal of the instant action. The Title VII complaint in question here, while hardly a model of detailed pleading, is readily distinguishable from the right-to-sue letter at issue in Baldwin" }, { "docid": "21394789", "title": "", "text": "Orengo. Cespedes claims that the amended Complaint would “simply restate[] the legal theories and facts asserted in the pro se pleading.” (Pltf.Partial SJ Memo at 8.) Defendants oppose Cespedes’ motion to amend his Complaint. (Memorandum of Law in Opposition to Plaintiffs Cross-Motion for Partial Summary Judgment and in Partial Opposition to Plaintiffs Motion to Amend Complaint, Cespedes v. Coughlin, 90 Civ. 2667 (Dec. 7, 1992).) Magistrate Judge Grubin recommends that this Court deny plaintiff’s motion to amend his Complaint. (Report at 9.) Federal Rule of Civil Procedure (“Rule”) 15(a) permits a party to amend its pleadings after his adversary has filed a responsive pleading “only by leave of court ... and leave shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a). Because Rule 15(a) is broadly written to permit liberal pleading amendments, a “court may not impose arbitrary restrictions on the availability of amendments or use its discretion in a way that undermines the basic policy of the rule.” 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1487, at 612 (1990). In Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), the Supreme Court enunciated the following general standard to be employed by lower courts in applying Rule 15(a): If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules requires, be “freely given.” Id. at 182, 83 S.Ct. at 230. Of these factors, perhaps the most frequent reason for denying leave to amend is that the opposing party will be prejudiced if the movant is permitted to amend his pleading. Zenith Radio Corp. v. Hazeltine Research," }, { "docid": "17900139", "title": "", "text": "Under Federal Rule of Civil Procedure 15(a), a party may amend its complaint once as a matter of course at any time before a responsive pleading is served. Fed.R.Civ.P. 15(a). Once a responsive pleading is filed, a party may amend its complaint only by leave of the court or by written consent of the adverse party. Id.; Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). The grant or denial of leave is committed to the discretion of the district court. Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.Cir.1996). The court must heed Rule 15’s mandate that leave is to be “freely given when justice so requires.” Fed.R.Civ.P. 15(a); Foman, 371 U.S. at 182, 83 S.Ct. 227; Caribbean Broad. Sys., Ltd. v. Cable & Wireless P.L.C., 148 F.3d 1080, 1083 (D.C.Cir.1998). “If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits.” Foman, 371 U.S. at 182, 83 S.Ct. 227. Denial of leave to amend therefore constitutes an abuse of discretion unless the court gives sufficient reason, such as futility of amendment, undue delay, bad faith, dilatory motive, undue prejudice, or repeated failure to cure deficiencies by previous amendments. Id.; Caribbean Broad. Sys., 148 F.3d at 1083. B. The Court Grants the Plaintiffs Renewed Motion for Leave to File an Amended Complaint 1. The Amended Complaint Relates Back to the Original Complaint The plaintiff seeks to amend his complaint to include allegations that he “was [subject] to disparate treatment based on his race and national origin” in the making and enforcement of his employment contract and that he was terminated in retaliation for “complaining] about the discriminatory treatment.” Proposed Am. Compl. ¶¶ 17-19. Additionally, the plaintiff seeks to add claims under the Fifth Amendment and § 1983 for violation of his due process rights. Id. ¶¶ 20-25. The defendant contends that the plaintiffs new claims are time-barred by the applicable three-year statute of limitations, stating that “[n]one of the new claims relate back because" }, { "docid": "10080190", "title": "", "text": "her from returning to Frentzel’s room. New-eombe, Young, and others later returned to Frentzel’s room and found that he had attempted to hang himself with a belt once again. Emergency measures were provided, but Frentzel eventually was pronounced dead on February 23, 2000. Plaintiff Schieszler filed her complaint on February 22, 2002. She sought damages for wrongful death under Va.Code § 8.01-52 against Ferrum, Newcombe, House, and Holley. The defendants moved to dismiss, and plaintiff moved to amend her complaint. Plaintiff and House agreed to a stipulated dismissal of House without prejudice and with leave to reinstate him as a defendant at a later date without assertion by House of a statute of limitations defense. By order and memorandum opinion dated July 15, 2002, I granted the motion to dismiss with respect to Holley, denied the motion to dismiss with respect to Ferrum and Newcombe, and granted plaintiffs motion for leave to file an amended complaint. Now, plaintiff seeks to file a second amended complaint. In this pleading, plaintiff seeks to reinstate House as a defendant. She also seeks to add as defendants Young and Piedmont, who have never been parties to this action to date. Finally, she seeks to add a claim for punitive damages against all defendants. DISCUSSION Plaintiffs motion to amend is governed by Fed.R.Civ.P. 15. Because responsive pleadings have been filed and because plaintiff already has amended her complaint once, plaintiff may not amend her complaint without leave of court. Fed. R.Civ.P. 15(a). Leave to amend “shall be freely given when justice so requires.” Id. Nevertheless, because the statute of limitations on plaintiffs wrongful death claim expired on February 23, 2002, see Va. Code. § 8.01-243(A) (providing two-year statute of limitations for injuries to person, regardless of theory of liability), all of plaintiffs proposed amendments must relate back to the time plaintiff filed her original complaint in order to survive a statute of limitations defense. 1. John Young and Piedmont Community Services The Federal Rules of Civil Procedure provide that an amendment altering the parties relates back to the time of the original complaint if: the" }, { "docid": "22170792", "title": "", "text": "have occurred in January and September of 2002 for which relief was not time-barred. B. The District Court En-ed In Denying the Motion to Amend the Complaint on the Ground of Futility We turn next to the district court’s denial of plaintiffs’ cross-motion to amend their complaint, which we review for abuse of discretion. Dougherty, 282 F.3d at 87; see Parker v. Columbia Pictures Indus., 204 F.3d 326, 339-40 (2d Cir.2000). In doing so, we review de novo any conclusions of law. Dougherty, 282 F.3d at 87. Upon de novo review, we conclude that the district court erred in ruling that the proposed amendment to the complaint would have been futile. Rule 15(a) of the Federal Rules of Civil Procedure provides in the first sentence that “[a] party may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served-” Fed.R.Civ.P. 15(a). The second sentence of Rule 15(a) provides that “[o]therwise a party may amend the party’s-pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” Id. At the time that plaintiffs moved to amend their complaint, defendants had not filed an answer. Defendants’ motion to dismiss, because it was a motion, not a pleading, was not a “responsive pleading” within the meaning of Rule 15(a). See Barbara v. New York Stock Exch., Inc., 99 F.3d 49, 56 (2d Cir.1996). The threshold question, therefore, is whether the district court was required to accept the proposed amended complaint because the plaintiffs were allowed by the first sentence of Rule 15(a) to amend the complaint as a matter of course. We conclude that the district court, because of the effect of Rule 16(b), was not so required. Although Rule 15(a) governs the amendment of pleadings, Rule 16(b) also may limit the ability of a party to amend a pleading if the deadline specified in the scheduling order for amendment of the pleadings has passed. See Fed.R.Civ.P. 16(b). Under Rule 16(b), a party may obtain a modification of the scheduling order" }, { "docid": "12288251", "title": "", "text": "the complaint in the instant case indicates the general nature of plaintiff’s grievance against Flower, it may legitimately be attacked under Rule 12(b)(6). The pleading provides no details of the circumstances under which Flower allegedly denied plaintiff employment, nor does it suggest plaintiff’s reason(s) for concluding that defendant denied him a position because of his race. On a simple motion to dismiss for failure to state a claim, therefore, the Court almost assuredly would grant the motion with leave to plain tiff to file an amended complaint curing the deficiencies of the original pleading. The Court rejects defendant’s argument, however, that the complaint should be dismissed without leave to replead, on the ground that its defects are so fundamental that it cannot be viewed as an “original pleading” to which any subsequent amendment could relate back under Rule 15(c), Fed.R.Civ.P. Defendant’s argument, and the broad reading of Baldwin County on which it is based, run counter to fundamental policies of both Congress and the courts. Absent some indication in Baldwin County to the contrary, this Court will not presume the Supreme Court to have intended its holding to extend beyond the facts of that case. What defendant’s argument implies— and what gives this Court pause — is the general proposition that whenever a pro se litigant presents a Title VII complaint in timely fashion to a district court, but the complaint is sufficiently defective as to be subject to attack on a motion to dismiss under Rule 12(b)(6), Fed.R.Civ.P., the complaint should be disregarded both for Title VII filing purposes and under the general pleading rules, and further, that it should be deemed incapable of cure by subsequent amendment. Such a proposition flies in the face of several important legislative and judicial objectives, not the least of which is manifested in Congress’ enactment and the federal courts’ enforcement of Title VII and other legislation intended to remedy the effects of unlawful discrimination. Both the Supreme Court and this Circuit, for example, have eschewed hypertechnical constructions of Title VII’s filing requirements that would needlessly burden or hamper litigants seeking redress under" }, { "docid": "8667318", "title": "", "text": "of action, as originally pleaded, contained no allegations of specific incidents of defamation. Plaintiffs propose to allege in an amended pleading specific statements allegedly made during a meeting of Pendleton managers in Portland, Oregon on January 30,1985 and other statements allegedly made by Pendleton managers during an October 1984 tour of the Northeast. Although defendant does not specifically address these issues, the Court notes that a one year statute of limitations applies to claims for defamation, N.Y.Civ.Prac.Law § 214, whereas a three year-period applies to claims sounding in prima facie tort, N.Y.Civ.Prac.Law § 215. Assuming plaintiffs amend their tort claim along the lines they have proposed, therefore, neither the limitations period for defamation nor that for prima facie tort would pose a bar to the claim as amended. II. Plaintiffs’ Cross-Motion for Leave to Amend the Complaint Plaintiffs seek to amend their complaint to include more specific allegations about the operation of the resale price maintenance scheme, the general outline of which they describe in the original complaint. Plaintiffs also seek to add allegations of specific instances when, they contend, various Pendleton employees made defamatory statements about them. Because defendant has answered plaintiffs’ original complaint, plaintiffs can amend only with leave of court. Once a defendant has filed a responsive pleading, granting leave to amend the complaint under Rule 15(a), Fed. R.Civ.P., falls within the discretion of the trial court. Zenith Radio Corp., supra, 401 U.S. at 331, 91 S.Ct. at 802. Rule 15(a), however, directs that “leave shall be freely given when justice so requires,” and amendments as a general matter are favored in order “to facilitate a proper decision on the merits.” Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957). Reasons to deny a motion for leave to amend include undue delay, bad faith, and the resulting prejudice to the opposing party, or the futility of the amendment. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Fustok v. Conticommodity Services, Inc., 103 F.R.D. 601, 603 (S.D.N.Y.1984). In opposition to plaintiffs’ motion, Pendleton contends" } ]

[ { "docid": "23203566", "title": "", "text": "HANSEN, Circuit Judge. Mustafa Abdullah appeals the district court’s dismissal of his petition for a writ of habeas corpus under 28 U.S.C. § 2241 (2000). The issue in this case is whether, in the circumstances presented, 28 U.S.C. § 2255 (2000) is inadequate or ineffective to test the legality of Abdullah’s conviction, such that a district court would have jurisdiction to consider a § 2241 petition for habeas corpus relief. We agree that the district court had no jurisdiction to consider Abdullah’s claim, and we affirm the judgment of the district court. I. Abdullah’s claim, stemming from a firearm conviction under 18 U.S.C. § 924(c)(1) (1988), has been before this court before. The factual background of his claim is more fully developed in the previous opinions. In brief, Abdullah pleaded guilty to charges of drug distribution under 21 U.S.C. §§ 841 and 846 (1988), and “use” of a firearm under § 924(c)(1). We affirmed on appeal. See United States v. Abdullah, 947 F.2d 306 (8th Cir.1991), cert. denied, 504 U.S. 921, 112 S.Ct. 1969, 118 L.Ed.2d 569 (1992). In 1993 Abdullah filed a § 2255 motion raising ineffective-assistance-of-counsel claims. In this motion, Abdullah did not argue that his § 924(c)(1) conviction was invalid because he had not properly understood the statute’s definition of the word “use.” In December 1995 the Supreme Court decided Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Bailey held that the “use” element in § 924(c)(1) “requires evidence sufficient to show an active employment of the firearm by the defendant.” Bailey, 516 U.S. at 143, 116 S.Ct. 501. Thereafter, in March 1996, while his § 2255 motion was pending in the district court, Abdullah filed a pro se motion in the district court in which he argued, for the first time, that his § 924(c)(1) conviction was invalid under Bailey. Because Abdullah was represented by counsel, the district court refused to accept the motion. Abdullah v. United States, 240 F.3d 683, 685-86 (8th Cir.), cert. denied, 534 U.S. 923, 122 S.Ct. 278, 151 L.Ed.2d 204 (2001). “The district court denied" } ]

[ { "docid": "22812425", "title": "", "text": "as a whole, including evidence that is new and material, supports the ALJ’s determination. Cunningham v. Apfel, 222 F.3d 496, 500 (8th Cir.2000). We conclude that the additional evidence submitted to the Appeals Council does not undermine the ALJ’s RFC determination. As to the MRI report, we conclude that it was not new evidence. “To be ‘new,’ evidence must be more than merely cumulative of other evidence in the record.” Bergmann v. Apfel, 207 F.3d 1065, 1069 (8th Cir.2000). While the MRI report itself was not in the record prior to the ALJ’s decision, the opinions of the doctors who had reviewed the MRI report were part of the record before the ALJ. Accordingly, the report is cumulative of the evidence in the record and considered by the ALJ, and thus it is not new and is not considered. As a treating physician, Dr. Russell’s opinion is entitled to substantial weight “unless it is unsupported by medi cally acceptable clinical or diagnostic data.” Kirby v. Sullivan, 923 F.2d 1323, 1328 (8th Cir.1991). Although Dr. Russell reviewed Perks’s surgical and treatment history and medical complaints, his opinion does not indicate that it is supported by clinical or diagnostic data. Considering this additional evidence with the evidence before the ALJ does not lead to the conclusion that the ALJ would have reached a different result or that the ALJ’s decision is unsupported by substantial evidence in the record as a whole. See Kitts v. Apfel, 204 F.3d 785, 786 (8th Cir.2000) (per curiam) (“When the Appeals Council has considered new and material evidence and declined review, we must decide whether the ALJ’s decision is supported by substantial evidence in the whole record, including the new evidence.”). IV. The judgment of the district court is affirmed. . The Honorable Jerome T. Kearney, United States Magistrate Judge for the Eastern District of Arkansas, to whom the case was referred for final disposition by consent of the parties pursuant to 28 U.S.C. § 636(c)." }, { "docid": "23220895", "title": "", "text": "ALJ offered an explanation of the inconsistency between his testimony and the DOT. When the ALJ posed the hypothetical to the VE, the VE indicated that Jones could perform the sedentary positions of the calendar control clerk and patient insurance clerk but “that they would — would be adjusted in the amount of their occurrences due to the limitation of only occasionally handle.” Additionally, the VE estimated, in his expert opinion, “a 10 or 15% reduction in those jobs because there was a restriction in handling, but not in the fingering and feeling part of it.” “Because the vocational expert specifically limited his opinion to reflect sedentary work only (requiring [occasional handling] ), his testimony was a perfectly acceptable basis for the administrative law judge’s conclusions.” Jones v. Chater, 72 F.3d 81, 82 (8th Cir.1995). III. Conclusion Accordingly, we hold that substantial evidence on the record as a whole supports the ALJ’s decision. We therefore affirm the judgment of the district court. . The Honorable Beth M. Deere, United States Magistrate Judge for the Eastern District of Arkansas, to whom the case was referred for final disposition by consent of the parties pursuant to 28 U.S.C. § 636(c). . We note that the district court stated that for Jones to meet the listing for chronic pulmonary insufficiency, her FEVX had to be 1.45 or less. Under either calculation, Jones has failed to meet the listing. . Jones asserts that GAF scores are essential to the accuracy of the RFC assessment, citing Pate-Fires, a case also implicating Dr. Erby’s opinion. Pate-Fires is distinguishable from the present case because, in that case, the record reflected a lengthy history of GAF scores for the claimant. 564 F.3d at 944. We concluded that [t]he total GAF score history indicates [the claimant] was above 50 only four out of twenty-one times in a six-year period. The ALJ failed to discuss or consider the many GAF scores below SO, including scores as low as 10 and 20. The history of GAF scores at 50 or below, taken as a whole, indicate [the claimant] has \"[s]erious symptoms" }, { "docid": "23600266", "title": "", "text": "to consider the claim, and remand to the state court was proper. Like the district court, we have no power to decide the merits of a case over which we have no jurisdiction. For the foregoing reasons, the appeal is dismissed. . The Honorable Thomas C. Mummert, III, United States Magistrate Judge for the Eastern District of Missouri, to whom the case was referred for final disposition by consent of the parties pursuant to 28 U.S.C. § 636(c). . On March 19, 2002, Darlene March and Skyline filed a notice of appeal with this court. Norfolk’s notice of appeal was filed on April 18, 2002. These separate appeals were consolidated on May 29, 2002. . The initial action was filed on August 21, 2001. . Filla's amended petition was filed on September 12, 2001. On February 26, 2002, Filia, at the request of the district court, dismissed Richard March, a deceased defendant. . The case was removed on October 11, 2001. . See 28 U.S.C. §§ 1441, 1332. . \"Paintball” typically refers to a game of simulated combat played in a rural setting where the combatants fire paint-filled balls at each other. . 28 U.S.C. § 1447(c) reads in pertinent part: A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded .... The State court may thereupon proceed with such case. . See Travis v. Irby, 326 F.3d 644, 647 (5th Cir.2003) for an in-depth discussion of the various mutations of the fraudulent-joinder standard throughout the circuits. Relevant treatises have not been entirely consistent either. Moore’s Federal Practice states: \"To establish fraudulent joinder, a party must demonstrate ... the absence of any possibility that the opposing party has stated a claim under state law.” 16 James Wm. Moore et al., Moore’s Federal Practice, ¶ 107.14[2][c][iv][A] (3d ed.2000)(emphasis added). It then comments: \"[T]he ultimate" }, { "docid": "9751256", "title": "", "text": "not waived the bona fide error defense, we conclude that the defense is not available to Hawks in this case. Hawks argues that the defense protects its actions because any liability resulted from a mistake in legal judgment in interpreting and applying Minnesota’s garnishment statute. We have previously addressed the use of the bona fide error defense in cases of mistake in legal judgment and concluded that “reliance on the advice of counsel or a mistake about the law is not protected by” the bona fide error defense. Hulshizer v. Global Credit Servs., Inc., 728 F.2d 1037, 1038 (8th Cir.1984) (per curiam) (citing Baker v. G.C. Servs. Corp., 677 F.2d 775, 779) (9th Cir.1982). Hulshizer remains the law of this Circuit. See United States v. Reynolds, 116 F.3d 328, 329 (8th Cir.1997) (reiterating that one panel of judges in Circuit may not overrule decision of another panel in Circuit). Thus, Hawks’s violation of the FDCPA cannot be excused under 15 U.S.C. § 1692k(c). V. Based upon the foregoing discussion, we affirm the District Court’s grant of partial summary judgment to the Pichts and the denial of Hawks’s summary judgment motion. . The Honorable Franklin L. Noel, United States Magistrate Judge for the District of Minnesota, to whom the case was referred for final disposition by consent of the parties pursuant to 28 U.S.C. § 636(c). . After the Pichts filed this federal action in July 1998, the Minnesota state court entered judgment against the Pichts, assessing a civil penalty of $40 per dishonored check. .Shayleen Picht was a named plaintiff and Jon R. Hawks (individually) and George E. Warner were named defendants in the federal suit but were dismissed from the case by the parties' consent after the District Court granted partial summary judgment. . Minn.Stat. § 571.71. Section 571.71 authorizes garnishment in three instances only: First, when a default judgment could have, but has not, been entered under Minn. R. Civ. P. 55.01(a) (the instance at issue in this case); second, after the entry of a money judgment in a civij action; or third, when the requirements of section" }, { "docid": "20455189", "title": "", "text": "BENTON, Circuit Judge. Ruben Lopez-Lopez, a federal inmate in Arkansas, appeals the dismissal of his petition for habeas corpus under 28 U.S.C. § 2241. Convicted of drug offenses, Lopez-Lopez was sentenced to 235 months’ imprisonment by the United States District Court in Puerto Rico. The First Circuit affirmed the conviction and sentence. See United States v. Lopez-Lopez, 282 F.3d 1 (1st Cir.2002). He later sought relief under 28 U.S.C. § 2255 in the sentencing court, alleging ineffective assistance of trial counsel. After that court and the First Circuit denied a certificate of appealability, Lopez-Lopez petitioned the district court for the Eastern District of Arkansas for relief under § 2241. The district court dismissed the petition, and this court affirmed, concluding he failed to show that § 2255 relief was either inadequate or ineffective. See Lopez-Lopez v. Sanders, 256 Fed.Appx. 15, 16 (8th Cir.2007), cert. denied, — U.S. -, 128 S.Ct. 2945, 171 L.Ed.2d 873 (2008). Lopez-Lopez filed a new complaint, again asserting his claims under § 2241. Lopez-Lopez now argues that the savings clause of § 2255 allows him to seek relief under § 2241 and that his post-conviction counsel was ineffective. The district court dis missed his petition. Having jurisdiction under 28 U.S.C. § 1291, this court affirms. A federal inmate generally must challenge a conviction or sentence through a § 2255 motion. Abdullah v. Hedrick, 392 F.3d 957, 959 (8th Cir.2004). The savings clause of § 2255 permits a petition under § 2241 if the § 2255 remedy is inadequate or ineffective to test the legality of a conviction or a sentence. See 28 U.S.C. § 2255(e). The inmate bears the burden of showing that the remedy is inadequate or ineffective. Abdullah, 392 F.3d at 959. This court reviews de novo the dismissal of a § 2241 petition. Id. Lopez-Lopez first alleges that the sentencing court misunderstood or failed to adequately address his § 2255 claim. This recasts the argument previously rejected by this court. See Lopez-Lopez, 256 Fed.Appx. at 16. As this court explained, “the fact that a claim was previously raised in a § 2255 motion" }, { "docid": "19816231", "title": "", "text": "testified that the West Side Posse frequented a dope house. Although there was little evidence that Jackson personally dealt drugs, his role as a leader, combined with the ubiquity of narcotics dealing within the gang, was enough to make the slinger comment cumulative. Moreover, the evidence of Jackson’s guilt was strong. Bush’s firsthand account of the shooting was corroborated by forensic evidence showing that two weapons were used to commit the murder. In her recorded statement, Griffin told the police that Jackson admitted to substantially the same details that Bush provided. And Jackson had both the means and motive to kill Raynor. Given these circumstances, we cannot say that Detective Hurd’s comments had a substantial impact on the jury’s verdict. Accordingly, the district court did not err in denying Jackson’s petition for a writ of habeas corpus. The judgment is affirmed. . The Honorable J. Thomas Ray, United States Magistrate Judge for the Eastern District of Arkansas, to whom the case was re ferred pursuant to the consent of the parties. See 28 U.S.C. § 636(c)(1). . Although Jackson raised additional arguments in his reply brief and supplemental briefs, our review is limited to the issue set forth in the certificate of appealability. See Chang v. Minnesota, 521 F.3d 828, 831 (8th Cir.2008)." }, { "docid": "19972985", "title": "", "text": "case was under review in the district court. While there is some evidence in the record indicating that Mouser might be mentally deficient — such as his enrollment in special education classes during high school and the assistance he occasionally receives from his parents with reading and pronouncing difficult words — there is also evidence to suggest he is mentally competent. Mouser held semi-skilled jobs for twenty-five years. He testified that he gets along well with people, is able to count money, follow directions, and focus on the task at hand. Although we have previously faulted the Commissioner for not sufficiently developing the record where the issue was not explicitly raised by the claimant, those cases involved far more evidence indicating that further development was necessary than the facts before us now. See Gasa-way v. Apfel, 187 F.3d 840 (8th Cir.1999); Thompson v. Sullivan, 878 F.2d 1108 (8th Cir.1989). In Gasaway, for example, the record before the ALJ not only showed that the claimant was in special education classes in high school, but included her school records indicating she had a verbal IQ of sixty-nine and medical records that specifically noted a history of mental retardation. Gasaway, 187 F.3d at 843. The relevant evidence here is more analogous to that which existed in Hensley v. Barnhart, 352 F.3d 353, 357 (8th Cir.2003), where a prescription for anti-depressants did not constitute evidence sufficient to require further inquiry into the claimant’s psychological state. Accordingly, we conclude that the record is lacking in evidence that would have put the ALJ on notice that Mouser’s mental capacity may be at issue and that the ALJ fully and fairly developed the record based on the evidence before him. The judgment is affirmed. . The Honorable Beth Deere, United States Magistrate Judge for the Eastern District of Arkansas, to whom the case was assigned by consent of the parties. See 28 U.S.C. § 636(c)(1)." }, { "docid": "23600265", "title": "", "text": "setting. As we discussed in Iowa Public Service Co., in situations where the sufficiency of the complaint against the non-diverse defendant is questionable, “the better practice is for the federal court not to decide the doubtful question in connection with a motion to remand but simply to remand the case and leave the question for the state courts to decide.” 556 F.2d at 406. Here, the district eourt-by remanding the case to the state court-did all that was required of it. We agree that under Missouri law a reasonable basis exists for predicting that liability might be imposed upon petitioners, and the ultimate success-or failure-of Filla’s claims is best left to the Missouri courts. By ordering remand of the case to Missouri state court, the district court inevitably did reach the question of its own jurisdiction. The fact that § 1447 or “subject-matter jurisdiction” was not mentioned by the district court in its remand order is not determinative. As it stands, the state defendants’ presence destroys complete diversity. Consequently, the district court lacked subject-matter jurisdiction to consider the claim, and remand to the state court was proper. Like the district court, we have no power to decide the merits of a case over which we have no jurisdiction. For the foregoing reasons, the appeal is dismissed. . The Honorable Thomas C. Mummert, III, United States Magistrate Judge for the Eastern District of Missouri, to whom the case was referred for final disposition by consent of the parties pursuant to 28 U.S.C. § 636(c). . On March 19, 2002, Darlene March and Skyline filed a notice of appeal with this court. Norfolk’s notice of appeal was filed on April 18, 2002. These separate appeals were consolidated on May 29, 2002. . The initial action was filed on August 21, 2001. . Filla's amended petition was filed on September 12, 2001. On February 26, 2002, Filia, at the request of the district court, dismissed Richard March, a deceased defendant. . The case was removed on October 11, 2001. . See 28 U.S.C. §§ 1441, 1332. . \"Paintball” typically refers to a game" }, { "docid": "2156064", "title": "", "text": "to try Spatola on the Ciancimino bribery charge. Spatola then brought this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, challenging the magistrate’s extradition order. The government did not contest the magistrate’s determination that Spatola could not be extradited on either the foreign currency conviction or the bribery charge. A stay of extradition pending the disposition of the petition was entered in the United States District Court for the Eastern District of New York. Subsequently, the district court, determining that there was probable cause to believe that Spatola committed offenses in Italy which are clearly illegal in the United States, dismissed Spatola’s petition. This appeal followed. DISCUSSION An order certifying a request for extradition cannot be reviewed on direct appeal because “[ejxtradition orders do not ... constitute ‘final decisions of a district court,’ appealable as of right under 28 U.S.C. § 1291.” Jhirad v. Ferrandina, 536 F.2d 478, 482 (2d Cir.), cert. denied, 429 U.S. 833, 97 S.Ct. 97, 50 L.Ed.2d 98 (1976). Instead, a party who is to be extradited — a relator — may obtain limited review of an extradition order by seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241. In this context, “habeas corpus is available only to inquire whether the magistrate had jurisdiction, whether the of-fen[s]e charged is within the treaty and, by a somewhat liberal extension, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty.” Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970 (1925) (citations omitted); see Ahmad v. Wigen, 910 F.2d 1063, 1064-5 (2d Cir.1990); Messina v. United States, 728 F.2d 77, 79 (2d Cir.1984); Simmons v. Braun, 627 F.2d 635, 637 (2d Cir.1980). Therefore, the district court’s review of Magistrate Caden’s order was narrow in scope. Because we find that the district court did not err in reviewing the order of extradition, we affirm its decision to deny petitioner habeas corpus relief. Before certifying an extradition order, a judicial officer must conduct a hearing to determine whether there exists" }, { "docid": "19187027", "title": "", "text": "filed his § 2241 petition, he was being held in the United States Penitentiary in Lompoc, California. In his § 2241 habeas petition, Stephens alleges “actual innocence” based on Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999). He contends the district court has jurisdiction because a § 2255 motion is “inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255. The district court disagreed, dismissing his § 2241 petition for lack of jurisdiction. For the reasons that follow, we affirm. II. Standard of Review We review de novo the district court’s decision to deny a petition under 28 U.S.C. § 2241. Benny v. U.S. Parole Com’n, 295 F.3d 977, 981 (9th Cir.2002). We also review de novo whether a district court has jurisdiction over a § 2241 petition. See Lucky v. Calderon, 86 F.3d 923, 925 (9th Cir.1996). III. Discussion The general rule is that a motion under 28 U.S.C. § 2255 is the exclusive means by which a federal prisoner may test the legality of his detention, see Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir.2003) (as amended), and that restrictions on the availability of a § 2255 motion cannot be avoided through a petition under 28 U.S.C. § 2241. See Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir.1999) (per cu-riam). The one exception to the general rule is what we have called the “escape hatch” of § 2255. Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir.2000). The escape hatch permits a federal prisoner to “file a habeas corpus petition pursuant to § 2241 to contest the legality of a sentence where his remedy under § 2255 is ‘inadequate or ineffective to test the legality of his detention.’ ” Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir.2000) (per curiam) (quoting § 2255). As described above, Stephens has filed multiple unsuccessful § 2255 motions in federal district court in Oklahoma. In order to file another § 2255 motion, he must first obtain authorization from the court of appeals. See 28 U.S.C. § 2244(b)(2) and (3). A" }, { "docid": "16750961", "title": "", "text": "PER CURIAM. This three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Circuit R. 10(e). The cause is therefore ordered submitted without oral argument- This is an appeal from an order of the district court dismissing appellant’s petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. In the district court appellant sought to challenge a 1962 federal conviction for perjury rendered in the Middle District of Georgia, for which the sentence has been fully served, on the grounds it was constitutionally invalid. Appellant also challenged a 1977 mandatory injunction issued against him by the Southern District of Texas which imposed six restraints on his right to file lawsuits in state and federal courts throughout the country. ^e federal magistrate dismissed the ac-^ion and recommended that the district judge to whom the case was assigned consider an order prohibiting appellant from filing any complaints or petitions without counsel and payment of all court costs, The district judge adopted the recommendations of the magistrate including a directive prohibiting appellant from filing any further complaints or petitions in the United States District Court for the District of Colorado without payment of all filinf? fees- Appellant’s challenge to the federal perjury conviction is without merit because he fails to satisfy the “in custody” requirements which are a prerequisite to federal habeas corpus jurisdiction. 28 U.S.C. § 2241; 28 U.S.C. § 2255; see also United States v. Condit, 621 F.2d 1096 (10th Cir. 1980). Similarly, the challenge to the mandatory injunction is meritless. Appellant is not now nor has he ever been “in custody” in the sense contemplated by 28 U.S.C. § 2241. Furthermore, the district court is without jurisdiction to afford relief from a mandatory injunction issued from a federal district court sitting in another circuit, The final issue concerns the district court’s requirement that appellant be prohibited from filing any further complaints or petitions in the district of Colorado without payment of all filing fees. Such a restriction, in effect, purports to absolutely" }, { "docid": "23646075", "title": "", "text": "PER CURIAM. Christopher Ray LeGear, an Iowa inmate, appeals the magistrate judge’s denial of his motion to reopen his previously-dismissed 42 U.S.C. § 1983 case based on newly-discovered evidence. We dismiss the appeal for lack of jurisdiction. LeGear claimed that prison officials violated his due process and Eighth Amendment rights by keeping him in administrative segregation without giving him specific reasons or meaningful reviews. The district court dismissed his complaint as frivolous pursuant to 28 U.S.C. § 1915(d) and denied his motion for reconsideration. LeGear appealed the order, and this court affirmed. Before we affirmed, however, LeGear moved the district court to reopen the case, alleging newly-discovered evidence. He also filed an “Application for Consideration of Special Discovery Request” and a motion for appointment of counsel. The district court referred the matter to the magistrate judge, who denied all three motions without explanation. LeGear appealed. A Federal Rule of Civil Procedure 60(b)(2) motion may be referred to a magistrate judge under 28 U.S.C. § 636(b)(3), which allows the district court to assign to the magistrate judge “additional duties ... not inconsistent with the Constitution and laws of the United States.” See McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 925 F.2d 853, 856 (5th Cir.1991) (motion may be referred for proposed recommendations and findings). A magistrate judge’s decision issued pursuant to section 636(b)(3) is not a final order; initial review rests with the district court. Gleason v. Secretary of Health & Human Servs., 777 F.2d 1324, 1324 (8th Cir.1985); Loewen-America, Inc. v. Advance Distrib. Co., 673 F.2d 219, 220 (8th Cir.1982). A magistrate judge’s decision is a final order only if the parties have explicitly and unambiguously consented to the magistrate judge’s jurisdiction under section 636(c). See Henry v. Tri-Services, Inc., 33 F.3d 931, 933 (8th Cir.1994). Because the district court did not issue an order on the motion and the record does not contain a document showing that the parties consented to the magistrate judge’s jurisdiction, we vacate the order and dismiss the appeal for lack of jurisdiction. . The Honorable John A. Jarvey, United States Magistrate Judge for" }, { "docid": "22063899", "title": "", "text": "District of Arkansas where he was incarcerated, alleging the district court in Oklahoma violated his constitutional rights when it enhanced his sentence based on the state firearms offense later dismissed. On November 13, 2001, Hill filed in Arkansas a second petition for a writ of habeas corpus under § 2241, alleging the Oklahoma court further violated his constitutional rights by including personal use amounts in the guideline calculations. The district court consolidated the two habeas actions and concluded it lacked jurisdiction over Hill’s collateral challenges to a federal conviction or sentence filed pursuant to 28 U.S.C. § 2241 in the court of incarceration. Adopting the proposed findings and recommended disposition of Magistrate Judge J. Thomas Ray, the district court concluded Hill’s § 2241 petitions failed to satisfy the requirements of the “savings clause” of § 2255, which provides the court of incarceration as having subject matter jurisdiction over a collateral attack on a conviction or sentence rendered by another district court only if the remedies in the sentencing district are inadequate or ineffective. This court granted a certificate of appealability. II This court renders de novo review of a district court judgment dismissing a habeas corpus petition filed under § 2241. United States v. Lurie, 207 F.3d 1075 (8th Cir.2000) (citing Charles v. Chandler, 180 F.3d 753, 755 (6th Cir.1999)). It is well settled a collateral challenge to a federal conviction or sentence must generally be raised in a motion to vacate filed in the sentencing court under § 2255 (in this case, the Western District of Oklahoma), and not in a habeas petition filed in the court of incarceration (in this case, the Eastern District of Arkansas) under § 2241. See DeSimone v. Lacy, 805 F.2d 321, 323 (8th Cir.1986) (citations omitted). Section 2255’s “savings clause” provides that an application for relief shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test" }, { "docid": "17647464", "title": "", "text": "PER CURIAM: Plaintiff Mahmood M. Yoonessi, M.D., who was initially represented by counsel in the district court but appears here pro se, has filed a notice of appeal from a final judgment of the United States District Court for the Western District of New York, Richard J. Arcara, Judge, affirming the final judgment of Magistrate Judge Carol E. Heckman, to whom the matter was referred on consent of the parties, see 28 U.S.C. § 636(c) (1988), dismissing the complaint asserting claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1988 & Supp. Ill 1991) (“Title VII”), and 42 U.S.C. §§ 1981, 1983, and 1985 (1988). The decision of the magistrate judge, which was affirmed on appeal to the district judge, principally dismissed plaintiffs claims against state entities on the ground of Eleventh Amendment immunity; dismissed the Title VII claims on the ground that plaintiff had failed to comply with the statutory prerequisite of filing his claim with the appropriate administrative agency; and dismissed the claims under 42 U.S.C. §§ 1981, 1983, and 1985 on statute-of-limitations grounds. Plaintiff seeks review of these decisions. Where a final judgment entered on the decision of the magistrate judge has been appealed to a district judge, the final judgment entered on the district judge’s decision “may be reviewed by the appropriate United States court of appeals upon petition for leave to appeal by a party stating specific objections to the judgment.” 28 U.S.C. § 636(c)(5); see Fed.R.App.P. 5.1(a). The party seeking review is required to file a petition for leave to appeal; that requirement is not satisfied by the filing of a notice of appeal. Moore McCormack Lines, Inc. v. International Terminal Operating Co., 784 F.2d 1542, 1544 (1986). The filing of a notice of appeal instead of the required petition for leave to appeal is not a jurisdictional defect, however, and we have discretion to treat the notice of appeal as such a petition. See id. In the present matter, in seeking review of the judgment of the district judge affirming the decision of the magistrate" }, { "docid": "14873635", "title": "", "text": "(8th Cir.1992); Dixon v. Sullivan, 905 F.2d 237, 238 (8th Cir.1990). There is no medical evidence indicating that the condition of his right shoulder has deteriorated since 1993, when he was able to work “reasonably well” using only his right side. After considering the record and the new evidence, we conclude that substantial evidence supports the ALJ’s decision. Barnes’s contention that the ALJ failed to consider the combined effect of his impairments lacks merit, as the ALJ discussed the evidence of impairments as a whole, recognizing Barnes’s left-arm deficits and considering whether the evidence would support Barnes’s allegations regarding his right arm. See Hajek v. Shalala, 30 F.3d 89, 92 (8th Cir.1994); Gooch v. Secretary of Health & Human Servs., 833 F.2d 589, 592 (6th Cir.1987) (per curiam), cert. denied, 484 U.S. 1075, 108 S.Ct. 1050, 98 L.Ed.2d 1012 (1988). Finally, the ALJ’s hypothetical question to the VE was not erroneous, as it included all the impairments that the ALJ found supported by the record as a whole. See Hinchey v. Shalala, 29 F.3d 428, 432 (8th Cir.1994). Accordingly, we affirm. . The Honorable Henry L. Jones, Jr., United Stales Magistrate Judge for the Eastern District of Arkansas, to whom the case was referred for final disposition by consent of the parties pursuant to 28 U.S.C. § 636(c)." }, { "docid": "22304035", "title": "", "text": "as a violent felony under the ACCA, a sentencing court “is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented”). The district court dismissed the § 2241 petition for lack of jurisdiction, finding that Turner’s petition was not cognizable because he did not satisfy the savings clause of § 2255(e). The district court also held that Turner’s Shepard claim was procedurally barred because he had an opportunity to raise it in his initial § 2255 motion but failed to do so. This appeal followed. II. Discussion Turner wages a two-pronged attack upon the district court’s dismissal of his § 2241 petition. He first argues that Be-gay and other intervening changes in the law since the disposition of his initial § 2255 motion have rendered erroneous the violent felony enhancement he received under the ACCA. He then argues, pursuant to Shepard, that the sentencing court erroneously relied upon police reports and arrest affidavits to prove the substance of his prior convictions. We review de novo the availability of habeas relief under § 2241, Dohrmann v. United States, 442 F.3d 1279, 1280 (11th Cir.2006), and “we may affirm for any reason supported by the record, even if not relied upon by the district court.” United States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir.2008) (per curiam) (internal quotation marks omitted). 1. The Intersection of §§ 2255 and 2241 “Typically, collateral attacks on the validity of a federal sentence must be brought under § 2255.” Darby v. Hawk-Sawyer, 405 F.3d 942, 944 (11th Cir.2005) (per curiam). Once a petitioner has filed his initial § 2255 motion, however, he is barred irom making second and successive motions except in two carefully delineated circumstances, neither of which applies here. See 28 U.S.C. § 2255(h) (requiring the court of appeals to certify the existence of either newly discovered evidence or a new rule of retroactively applicable constitutional law before a petitioner can file a second or successive § 2255 petition). In addition, pursuant to §" }, { "docid": "22063898", "title": "", "text": "trial court may consider a second or successive § 2255 motion, however, a petitioner must obtain permission from the court of appeals. 28 U.S.C. §§ 2244 and 2255. Accordingly, the district court for the Western District of Oklahoma transferred the petition to the Tenth Circuit. On July 27, 2001, the Tenth Circuit denied Hill’s request to file a second § 2255 motion concluding his arguments failed to satisfy the criteria set out in 28 U.S.C. § 2255. See 28 U.S.C. § 2255 (providing a court of appeals may grant a prisoner permission to file a second or successive habeas petition only if it: (1) is based upon newly discovered evidence that, if proven, would establish by clear and convincing evidence that no reasonable fact finder would have found the petitioner guilty; or (2) involves a new rule of constitutional law that the Supreme Court has held can be applied retroactively upon collateral review). On September 21, 2001, Hill filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the Eastern District of Arkansas where he was incarcerated, alleging the district court in Oklahoma violated his constitutional rights when it enhanced his sentence based on the state firearms offense later dismissed. On November 13, 2001, Hill filed in Arkansas a second petition for a writ of habeas corpus under § 2241, alleging the Oklahoma court further violated his constitutional rights by including personal use amounts in the guideline calculations. The district court consolidated the two habeas actions and concluded it lacked jurisdiction over Hill’s collateral challenges to a federal conviction or sentence filed pursuant to 28 U.S.C. § 2241 in the court of incarceration. Adopting the proposed findings and recommended disposition of Magistrate Judge J. Thomas Ray, the district court concluded Hill’s § 2241 petitions failed to satisfy the requirements of the “savings clause” of § 2255, which provides the court of incarceration as having subject matter jurisdiction over a collateral attack on a conviction or sentence rendered by another district court only if the remedies in the sentencing district are inadequate or ineffective. This court" }, { "docid": "7002014", "title": "", "text": "of records made or kept of the business transactions or affairs of any person (other than the person summoned) who is identified in the description of the records contained in the summons.... 26 U.S.C. § 7609(a)(l)(A)-(B). The district court, magistrate judge presiding, concluded that Ip was not entitled to notice of the summonses and therefore dismissed her petition for lack of subject matter jurisdiction under § 7609(b)(2)(A). Ip appeals and contends that her petition should not have been dismissed, because she was entitled to notice of the summonses under § 7609(a)(1). The IRS urges us to affirm the dismissal, relying on § 7609(c)(2)(B), which suspends the normal requirements of § 7609(a)(1) if the summons: (B) ... is in aid of the collection of (i) the liability of any person against whom an assessment has been made or judgment rendered, or (ii) the liability at law or in equity of any transferee or fiduciary of any person referred to in clause (i). The IRS argues that inasmuch as an assessment had been levied against Diamond Trade, clause (i) permits a summons to be issued against any third party without notice. We must decide which statute should apply § 7609(a), the general rule entitling affected persons to notice of third-party summonses, or § 7609(c)(2)(B), an exception to the third-party notice rule. We hold that Ip was entitled to notice under § 7609(a) and reverse the district court’s judgment determining that she lacked standing to challenge the IRS summonses. Jurisdiction in the district court is disputed. Ip contends that the court had jurisdiction pursuant to 28 U.S.C. § 1331 and 26 U.S.C. § 7609(b). The parties executed written consents for entry of final judgment by a magistrate judge pursuant to 28 U.S.C. § 636(c). This court has jurisdiction under 28 U.S.C. §§ 636(c)(3), 1291. The appeal was timely filed under Rule 4(a), Federal Rules of Appellate Procedure. The district court’s conclusion that it lacks subject matter jurisdiction is subject to de novo review. Central Green Co. v. United States, 177 F.3d 834, 835 (9th Cir.1999). I. Sheila Ip was living with and engaged" }, { "docid": "22546071", "title": "", "text": "observed that Pack’s challenge to the validity of his sentence was governed by section 2255, not section 2241, and that only the court where he was convicted and sentenced (the Eastern District of Tennessee), not the court in the district where he was incarcerated (the Southern District of Mississippi), had jurisdiction to hear such a challenge. Pack now appeals the dismissal of his section 2241 petition. Discussion This Court reviews de novo a district court’s dismissal of a section 2241 petition on the pleadings. See Venegas v. Henman, 126 F.3d 760, 761 (5th Cir.1997). We conclude that the district court was correct in dismissing Pack’s section 2241 petition for lack of jurisdiction. A writ of habeas corpus pursuant to 28 U.S.C. § 2241 and a motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255 are distinct mechanisms for seeking post-conviction relief. A section 2241 petition on behalf of a sentenced prisoner attacks the manner in which a sentence is carried out or the prison authorities’ determination of its duration, and must be filed in the same district where the prisoner is incarcerated. See Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.1996); Blau v. United States, 566 F.2d 526, 527 (5th Cir.1978) (per curiam). A section 2255 motion, by contrast, “provides the primary means of collateral attack on a federal sentence.” Cox v. Warden, Federal Detention Ctr., 911 F.2d 1111, 1113 (5th Cir.1990). Relief under section 2255 is warranted for errors cognizable on collateral review that occurred “at or prior to sentencing.” Id. (internal quotation omitted). A section 2255 motion must be filed in the sentencing court. Id. at 1113 n. 2. This Court has observed that “[a] petition for a writ of habeas corpus pursuant to [section] 2241 is not a substitute for a motion under [section] 2255.” McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir.1979) (per curiam); see also Williams v. United States, 323 F.2d 672, 673 (10th Cir.1963) (per curiam) (noting that a section 2241 petition “is not an additional, alternative, or supplemental remedy, to the relief afforded by motion" }, { "docid": "22403791", "title": "", "text": "354, 355-56 (8th Cir.1979) (per curiam) (same); Burton v. Ciccone, 484 F.2d 1322, 1323 (8th Cir.1973) (where petitioner has not been given timely initial parole hearing, “neither the District Court nor this Court has the right to correct the mistake by ordering the petitioner released,” but at most can “require the Parole Board to give the petitioner a fair hearing in accordance with its rules and regulations at the earliest possible date.”). Even if Mitchell’s § 2241 petition had been construed as seeking mandamus, we conclude that the dismissal was proper. By the time Mitchell filed his petition, the Commission had revoked his parole, and the Board had determined that the Commission would not have granted early termination if it had held a timely hearing in 2002. At that point, there was no basis to compel an early-termination hearing, because the Commission and the Board had made a decision on the appropriateness of Mitchell’s release. Section 4211(c) may well have entitled Mitchell to an earlier decision on possible termination of supervision if he had petitioned for a writ of mandamus in 2002 rather than waiting until 2005, but once the Commission and the Board rendered a decision in 2005, the statute does not grant Mitchell a right to release based on what hypothetically might have happened in 2002 if a hearing had been conducted then. For these reasons, the judgment of the district court is affirmed. . The Honorable Frederick R. Buckles, United States Magistrate Judge for the Eastern District of Missouri, to whom the case was referred for final disposition by consent of the parties pursuant to 28 U.S.C. § 636(c). . The Parole Commission and Reorganization Act (Parole Act), 18 U.S.C. § § 4201-4218 (1984), was repealed effective November 1, 1987, but remains in effect for individuals who committed an offense before that date. See Sentencing Reform Act of 1984, Pub.L. No. 98-473, §§ 218(a)(5), 235(b)(1)(A); see also Parole Commission Phaseout Act of 1996, Pub.L. No. 104-232, § 2(a). The parties agree that Mitchell committed his original offenses before November 1, 1987, and that the Parole Act applies" } ]

[ { "docid": "15867221", "title": "", "text": "lease rejection. The Bankruptcy Court, however, adopted the minority interpretation of Section 365 and held that, while the affirmative duty to pay rent imposed on the estate by Section 365(d)(3) could be interpreted as meeting the “actual, necessary” standard, the expenses should be allowed against the estate only to the extent they were beneficial to the estate. The Court concludes that the plain language of the statutes demonstrates that the majority view is the correct one. See In re Pacific-Atlantic Trading Co., 27 F.3d at 405. “The granting of administrative priority status for [the unpaid rent for the 60-day period] ... is consistent with the intent of section 365(d)(3) and necessary to carry out its objectives.” Id. The Ninth Circuit’s opinion in Pacific-Atlantic is particularly helpful. The court observed: The plain and unconditional language of the statute demands that a trustee promptly pay the full amount of rent due under a nonresidential real property lease during the 60-day period pending assumption or rejection [of the lease]. In re Pacific-Atlantic Trading Co., 27 F.3d 401, 404 (9th Cir.1994). The Ninth Circuit Court of Appeals rejected the minority view, espoused by the Ninth Circuit Bankruptcy Appellate Panel in In re Orvco, Inc., 95 B.R. 724 (9th Cir. BAP 1989), as “wholly inconsis tent with the mandate of section 365(d)(3).” In re Pacific-Atlantic Trading Co., 27 F.3d at 404. The court noted that “[b]y providing for timely performance of all lease obligations, ‘notwithstanding section 503(b)(1),’ the statute has already granted priority payment status to the full amount of rent due under nonresidential leases.” Id. Because of the priority status, a creditor under the lease need not prove that a value had been conferred upon the estate. Id. at 404-05. The Court finds this reasoning persuasive. The majority view accords meaning to both Section 503 and Section 365. The minority view adopted by the Bankruptcy Court renders the mandatory language of Section 365 meaningless. Under that view, a debtor who had failed to make the required rent payments could escape the directive if the landlord could not then prove that the rent had benefitted" } ]

[ { "docid": "14984759", "title": "", "text": "of the estate’s use and occupancy of the premises, and was paid, if at all, with other administrative claimants. New Almacs, 196 B.R. at 247. The amended § 365(d)(3) was intended to ease the immediate financial burden borne by the lessors of nonresidential real property by requiring the estate representative to “timely perform” the debtor’s obligations under the lease. Towers v. Chickering & Gregory (In re Pacific-Atlantic Trading Co.), 27 F.3d 401, 403 (9th Cir.1994). The legislative history of § 365(d)(3) evidences Congress’ belief that, “[t]his timely performance requirement [would] insure that debtor/tenants pay their rent, common area, and other charges [at the time required in the lease] pending the trustee’s assumption or rejection of the lease.” In re Longua, 58 B.R. 503, 505 n. 1 (Bankr.W.D.Wis.1986) (quoting H.R.Conf.Rep. No. 882, 98th Cong., 2d Sess. (1984), reprinted in 1984 U.S.C.C.A.N. 576). In interpreting the effect of the amended § 365(d)(3), courts have uniformly held that it requires that the estate representative pay the rent as it becomes due. Great Western Savings Bank v. Orvco, Inc. (In re Orvco, Inc.), 95 B.R. 724, 727 (9th Cir. BAP 1989) (citing cases); see also In re Rare Coin Galleries of America, Inc., 72 B.R. 415, 416 (D.Mass.1987). Nevertheless, while Congress clearly intended that commercial landlords receive timely postpetition pre-rejection rental payments, see All for A Dollar, Inc., 174 B.R. 358, 360 (Bankr.D.Mass.1994), the language and legislative history of the statute do not specify the remedy for the estate representative’s non-compliance, or the treatment of unpaid postpetition pre-rejection rental payment claims. As one court explained: If the lease were assumed, the trustee would have to bring the rental obligations current or make other arrangements with the landlord to cure the prior lease obligations, but in a case where the trustee has not made the post-petition, pre-rejection lease payments under § 365(d)(3), and then subsequently rejects the lease, there is a question as to how the unpaid rental payments should be treated by the court. In re Amber’s Stores, Inc., 193 B.R. 819, 822 (Bankr.N.D.Tex.1996). This failure to provide an express remedy to lessors in" }, { "docid": "12596060", "title": "", "text": "the landlord sought a lesser period of time of rent”); In re Coastal Dry Dock, supra (debtor was using only ten percent of the leased space); In re Klein Sleep Products, Inc., 78 F.3d 18, 30, ftn. 7 (2d Cir.1996) (“In either event, of course, the landlord is entitled to recover as an administrative expense the rent due while the debtor and the bankruptcy court debate whether to assume the lease. 11 U.S.C. 365(d)(3)”). See also In re Child World, Inc., 161 B.R. 571, 576 (S.D.N.Y.1993); In re Pacific-Atlantic Trading Co., 27 F.3d 401, 405 (9th Cir.1994) (“We observe, however, that section 365(d)(3) expresses the intent of Congress to secure for lessors the full amount of rent due during the 60-day period while the trustee determines to accept or reject the lease, regardless of any benefit to the estate”); Paul Harris Stores, Inc. v. Mabel L. Salter Realty Trust (In re Paul Harris Stores), 148 B.R. 307, 314 (S.D.Ind.1992) (lessor need not show postpetition rent is actual and necessary for preserving estate); In re Telesphere Communications, Inc., 148 B.R. 525, 531 (Bankr.N.D.Ill.1992) (“Pursuant to the plain language of Section 365(d)(3), the trustee or debtor in possession has a duty, prior to assumption or rejection of a lease of nonresidential real property, to make timely payment of the full rent due, from any available funds”); In re Tobago Bay Trading Co., 142 B.R. 528, 533 (Bankr.N.D.Ga.1991) (adopted majority view that “the plain meaning of the provision ‘notwithstanding section 503(b)(1) of this title’ obviates the requirement that administrative expense status be proven”) (citations omitted). To the contrary, see In re Orvco, Inc., 95 B.R. 724, 728 (9th Cir. BAP 1989) (“the language of 365(d)(3) ... does not mean that the necessity for showing the reasonableness of the rent or any of the other factors considered under section 503(b)(1)(A) has been completely abrogated”); In re Bilyk, 101 B.R. 586, 587 (Bankr.E.D.Mo.1989) (“The unexpired lease was deemed to have been rejected before the lessors filed their request for payment. Therefore, this claimant is required to establish its administrative expense status under 11 U.S.C. §" }, { "docid": "18515975", "title": "", "text": "Inc., 127 B.R. 715 (Bankr.D.Conn.1991); In re Tammey Jewels, Inc., 116 B.R. 292 (Bankr.M.D.Fla.1990). . 95 B.R. 724 (9th Cir. BAP1989). . Id. . Section 365(d)(4) of Title 11 provides: Notwithstanding paragraphs (1) and (2), in a case under any chapter of this title, if the trustee does not assume or reject an unexpired lease of nonresidential real property under which the debtor is the lessee within 60 days after the date of the order for relief, or within such additional time as the court, for cause, within such 60-day period, fixes, then such lease is deemed rejected, and the trustee shall immediately surrender such nonresidential real property to the lessor. . 95 B.R. at 728. . Towers v. Chickering & Gregory (In re Pacific-Atlantic Trading Co.), 27 F.3d 401 (9th Cir.1994). . Id. at 404. . In re Mr. Gatti’s, Inc., 164 B.R. 929 (Bankr.W.D.Tex.1994). . Id. at 946. . Id. . Towers v. Chickering & Gregory (In re Pacific-Atlantic Trading Co.), 27 F.3d 401, 404-405 (9th Cir.1994) (The court in Mr. Gatti's used a similar reasoning to the Tammey Jewels court when it said that a lessor had other remedies that it should use if the debtor is not making post-petition rent payments). . 95 B.R. at 728. . Towers v. Chickering & Gregory (In re Pacific-Atlantic Trading Co.), 27 F.3d 401 (9th Cir.1994); In re Compuadd Corp., 166 B.R. 862 (Bankr.W.D.Tex.1994); In re Worths Stores Corp., 135 B.R. 112 (Bankr.E.D.Mo.1991); In re Coastal Dry Dock & Repair Corp., 62 B.R. 879 (Bankr.E.D.N.Y.1986). . United States v. Ron Pair Enterprises, Inc. (In re Ron Pair Enterprises, Inc.), 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989) (quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917)). . United States v. Ron Pair Enterprises, Inc. (In re Ron Pair Enterprises, Inc), 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 3250, 73 L.Ed.2d 973 (1982)) (citation omitted). . 11 U.S.C. § 365(d)(3) (emphasis" }, { "docid": "3083615", "title": "", "text": "Lease was not terminated prior to the Petition Date. Entitlement of Postr-Petition Rents. Section 365(d)(3) of the Bankruptcy Code provides in relevant part: The trustee shall timely perform all the obligations of the debtor, except those specified in section 365(b)(2), arising from and after the order for relief under any unexpired lease of nonresidential real property, until such lease is assumed or rejected, notwithstanding section 503(b)(1) of this title. The court may extend, for cause, the time for performance of any such obligation that arises within 60 days after the date of the order for relief, but the time for performance shall not be extended beyond such 60-day period____ 11 U.S.C. Section 365(d)(3) (1994). Courts disagree on how to interpret Section 365(d)(3). A majority of courts interpret Section 365(d)(3) as granting the lessor an automatic administrative expense for the normal rental payments accruing post-petition. See, e.g., Towers v. Chickering & Gregory (In re Pacific-Atlantic Trading Co.), 27 F.3d 401, 404-405 (9th Cir.1994); In re Compuadd Corporation, 166 B.R. 862, 865 (Bankr.W.D.Tx.1994); In re CSVA, Inc., 140 B.R. 116, 121 (Bankr.W.D.N.C.1992); See, 3 Collier on Bankruptcy, Paragraph 365.04[3][f][ii] at 365-39 (15 ed.1997). The literal language of Section 365(d)(3) which requires a trustee to perform all obligations under leases of nonresidential real property, including the obligation to make timely rent payments, is interpreted to waive the requirement that the lessor must demonstrate that the estate benefited from the post-petition rental charge which would otherwise be required pursuant to Section 503(b)(1) of the Bankruptcy Code. Id. A minority of courts have interpreted Section 365(d)(3) to continue to require the lessor to show the value received by the estate during the period preceding rejection of the lease pursuant to Section 503(b)(1). See, e.g., In re Tammey Jewels, Inc., 116 B.R. 292, 295 (Bankr.M.D.Fla.1990); Great Western Savings Bank v. Orvco, Inc. (In re Orvco, Inc.), 95 B.R. 724, 728 (9th Cir. BAP 1989). However, this interpretation fails to give effect to the language in Section 365(d)(3) that the trustee must comply with all lease obligations “notwithstanding section 503(b)(1) of this title .” Towers v. Chickering" }, { "docid": "12610707", "title": "", "text": "or utilities, are required to continue to do business with debtors post petition. See In re Pudgie’s Dev. of N.Y., Inc., 202 B.R. 832, 836 (Bankr.S.D.N.Y.1996). Section 365(d)(3) gives landlords two additional protections over other creditors entitled to administrative expense status. First, § 365(d)(3) allows landlords to make a claim for post petition rent without meeting the requirements of § 503(b)(1). See § 365(d)(3). Thus, unlike other administrative expense claims, these claims are allowed in the full amount of rent and other charges due under the lease without a showing by the landlord that the amounts owed are reasonable or of a benefit to the estate. See In re Wingspread Corp., 116 B.R. 915, 925-26 (Bankr.S.D.N.Y.1990) (“I read ‘notwithstanding section 503(b)(1)’ as meaning that irrespective of whether the payments required under the lease meet the usual requirements for administrative status, reasonableness and benefit to the estate, they are unconditionally due.... ”). See also Towers v. Chickering & Gregory (In re Pacific-Atlantic Trading Co.), 27 F.3d 401, 404 (9th Cir.1994); TRST New York Inc. v. B.B. Ballew Sales. Co. (In re B.B. Ballew Sales Co.), 1996 WL 551663, *2 (S.D.N.Y.1996); Augusta Mall Partnership v. Twigland Fashions, Inc. (In re Twigland Fashions, Inc.), 198 B.R. 199, 200 (W.D.Tex.1996); WB, Ltd. v. Tobago Bay Trading Co. (In re Tobago Bay Trading Co.), 142 B.R. 528, 533 (Bankr.N.D.Ga.1991). But see Great Western Savings Bank v. Orvco, Inc. (In re Orvco), 95 B.R. 724, 726 (9th Cir. BAP 1989) (holding that such claims are subject to court review to assess their reasonableness); In re Mr. Gatti’s, Inc., 164 B.R. 929, 943 (Bankr.W.D.Tex.1994) (same). The second protection that § 365(d)(3) provides to post petition commercial lessors is that the trustee, or the debtor in possession, is required to “timely perform all the obligations ... arising from and after the order for relief under any unexpired lease of nonresidential real property, until such lease is assumed or rejected....” 11 U.S.C. § 365(d)(3) (1998). This language has caused a great deal of debate among the Bankruptcy Courts. On its face, the section appears clear that trustees or debtors" }, { "docid": "18515973", "title": "", "text": "a court and not the date a motion is filed by either the trustee or the debtor. Finally, the Court finds that based on the equities of the facts in this case, the Petula Lease should be deemed rejected to the petition date for the purpose of establishing the amount of Petula’s administrative claim. Therefore, since Amber’s had moved-out and turned over the keys to Petula pre-petition, Petula has no administrative claim for post-petition rent payments. A separate order will be entered consistent with this decision. . 11 U.S.C. § 365(d)(3). . See, In re Braniff Airways, Inc., 783 F.2d 1283 (5th Cir.1986). . Section 503(b)(1)(A) provides: (b) After notice and a hearing, there shall be allowed administrative expenses, other than claims allowed under section 502(f) of this title, including— (1)(A) the actual necessary costs and expenses of preserving the estate including wages, salaries, or commissions for services rendered after the commencement of the case. . In re Braniff Airways, Inc., 783 F.2d 1283, 1286 (5th Cir.1986). . 130 Cong.Rec. S8894-95 (daily ed. June 29, 1984) (remarks of Senator Hatch). . The Court would urge the reader to review the Memorandum Opinion of the Honorable Larry E. Kelly, the Chief Bankruptcy Judge for the United States Bankruptcy Court for the Western District of Texas, in In re Mr. Gatti's, Inc., 164 B.R. 929 (Bankr.W.D.Tex.1994), for an in-depth and scholarly analysis of the history behind § 365(d)(3) and virtually all the case law in this area prior to 1994. . Towers v. Chickering & Gregory (In re Pacific-Atlantic Trading Co.), 27 F.3d 401 (9th Cir.1994); In re Compuadd Corp., 166 B.R. 862 (Bankr.W.D.Tex.1994); Maroon v. Four Star Pizza, Inc. (In re Four Star Pizza, Inc.), 135 B.R. 498 (Bankr. W.D.Pa.1992); In re Worths Stores Corp., 135 B.R. 112 (Bankr.E.D.Mo.1991); In re Tobago Bay Trading Co., 142 B.R. 528 (Bankr.N.D.Ga.1991); In re Revco D.S., Inc., 109 B.R. 264 (Bankr.N.D.Ohio 1989). . See, e.g., Great Western Savings Bank v. Orvco (In re Orvco), 95 B.R. 724 (9th Cir. BAP1989); In re Mr. Gatti’s, Inc., 164 B.R. 929 (Bankr.W.D.Tex.1994); In re Laurence R. Smith," }, { "docid": "18515974", "title": "", "text": "1984) (remarks of Senator Hatch). . The Court would urge the reader to review the Memorandum Opinion of the Honorable Larry E. Kelly, the Chief Bankruptcy Judge for the United States Bankruptcy Court for the Western District of Texas, in In re Mr. Gatti's, Inc., 164 B.R. 929 (Bankr.W.D.Tex.1994), for an in-depth and scholarly analysis of the history behind § 365(d)(3) and virtually all the case law in this area prior to 1994. . Towers v. Chickering & Gregory (In re Pacific-Atlantic Trading Co.), 27 F.3d 401 (9th Cir.1994); In re Compuadd Corp., 166 B.R. 862 (Bankr.W.D.Tex.1994); Maroon v. Four Star Pizza, Inc. (In re Four Star Pizza, Inc.), 135 B.R. 498 (Bankr. W.D.Pa.1992); In re Worths Stores Corp., 135 B.R. 112 (Bankr.E.D.Mo.1991); In re Tobago Bay Trading Co., 142 B.R. 528 (Bankr.N.D.Ga.1991); In re Revco D.S., Inc., 109 B.R. 264 (Bankr.N.D.Ohio 1989). . See, e.g., Great Western Savings Bank v. Orvco (In re Orvco), 95 B.R. 724 (9th Cir. BAP1989); In re Mr. Gatti’s, Inc., 164 B.R. 929 (Bankr.W.D.Tex.1994); In re Laurence R. Smith, Inc., 127 B.R. 715 (Bankr.D.Conn.1991); In re Tammey Jewels, Inc., 116 B.R. 292 (Bankr.M.D.Fla.1990). . 95 B.R. 724 (9th Cir. BAP1989). . Id. . Section 365(d)(4) of Title 11 provides: Notwithstanding paragraphs (1) and (2), in a case under any chapter of this title, if the trustee does not assume or reject an unexpired lease of nonresidential real property under which the debtor is the lessee within 60 days after the date of the order for relief, or within such additional time as the court, for cause, within such 60-day period, fixes, then such lease is deemed rejected, and the trustee shall immediately surrender such nonresidential real property to the lessor. . 95 B.R. at 728. . Towers v. Chickering & Gregory (In re Pacific-Atlantic Trading Co.), 27 F.3d 401 (9th Cir.1994). . Id. at 404. . In re Mr. Gatti’s, Inc., 164 B.R. 929 (Bankr.W.D.Tex.1994). . Id. at 946. . Id. . Towers v. Chickering & Gregory (In re Pacific-Atlantic Trading Co.), 27 F.3d 401, 404-405 (9th Cir.1994) (The court in Mr. Gatti's used" }, { "docid": "12610708", "title": "", "text": "Ballew Sales. Co. (In re B.B. Ballew Sales Co.), 1996 WL 551663, *2 (S.D.N.Y.1996); Augusta Mall Partnership v. Twigland Fashions, Inc. (In re Twigland Fashions, Inc.), 198 B.R. 199, 200 (W.D.Tex.1996); WB, Ltd. v. Tobago Bay Trading Co. (In re Tobago Bay Trading Co.), 142 B.R. 528, 533 (Bankr.N.D.Ga.1991). But see Great Western Savings Bank v. Orvco, Inc. (In re Orvco), 95 B.R. 724, 726 (9th Cir. BAP 1989) (holding that such claims are subject to court review to assess their reasonableness); In re Mr. Gatti’s, Inc., 164 B.R. 929, 943 (Bankr.W.D.Tex.1994) (same). The second protection that § 365(d)(3) provides to post petition commercial lessors is that the trustee, or the debtor in possession, is required to “timely perform all the obligations ... arising from and after the order for relief under any unexpired lease of nonresidential real property, until such lease is assumed or rejected....” 11 U.S.C. § 365(d)(3) (1998). This language has caused a great deal of debate among the Bankruptcy Courts. On its face, the section appears clear that trustees or debtors in possession are obligated, during the period between the petition and the lease rejection, to timely pay rent. The confusion has arisen, though, where, as here, the debtor does not timely pay all of its post petition, pre rejection rent obligations and is administratively insolvent. The problem stems from the fact that the Code provides a mandate, timely rent payment, but does not specify a remedy in the event of a default. See In re Rich’s Dep’t Stores, Inc., 209 B.R. 810, 815 (Bankr.D.Mass.1997); In re Virginia Packaging Supply Co., 122 B.R. 491, 494 (Bankr.E.D.Va.1990); In re Granada, Inc., 88 B.R. 369, 374 (Bankr.D.Utah 1988); In re Dieckhaus Stationers of King of Prussia, Inc., 73 B.R. 969, 973 (Bankr.E.D.Pa.1987). The easy answer is that the landlord should be able to move to compel payment and, absent cause shown by the debtor, the court should direct the debtor to immediately pay the claim. See In re Pudgie’s Dev. of N.Y., Inc., 202 B.R. at 835-36 (recommending just such a resolution in the event of a default);" }, { "docid": "12610706", "title": "", "text": "part: The trustee shall timely perform all the obligations of the debtor, except those specified in section 365(b)(2), arising from and after the order for relief under any unexpired lease of nonresidential real property, until such lease is assumed or rejected, notwithstanding section 503(b)(1) of this title.... 11 U.S.C. § 365(d)(3) (1998). Congress added this section to the Code in 1984 as part of a series of amendments intended to improve the position of lessors of nonresidential real property. See William L. Norton, Jr., Norton Bankruptcy Law and Practice 2d § 42:8 (1998). In particular, § 365(d)(3) was intended to protect real property lessors during the period between the petition date and the date when debtor/lessees choose to assume or reject a lease. See Koenig Sporting Goods, Inc. v. Morse Road Co. (In re Koenig Sporting Goods), 229 B.R. 388, 392 (6th Cir. BAP 1999); In re Florida Lifestyle Apparel, Inc., 221 B.R. 897, 900 (Bankr.M.D.Fla.1997). Lessors are provided with this extra protection because they are one of the few creditors who, unlike trade creditors or utilities, are required to continue to do business with debtors post petition. See In re Pudgie’s Dev. of N.Y., Inc., 202 B.R. 832, 836 (Bankr.S.D.N.Y.1996). Section 365(d)(3) gives landlords two additional protections over other creditors entitled to administrative expense status. First, § 365(d)(3) allows landlords to make a claim for post petition rent without meeting the requirements of § 503(b)(1). See § 365(d)(3). Thus, unlike other administrative expense claims, these claims are allowed in the full amount of rent and other charges due under the lease without a showing by the landlord that the amounts owed are reasonable or of a benefit to the estate. See In re Wingspread Corp., 116 B.R. 915, 925-26 (Bankr.S.D.N.Y.1990) (“I read ‘notwithstanding section 503(b)(1)’ as meaning that irrespective of whether the payments required under the lease meet the usual requirements for administrative status, reasonableness and benefit to the estate, they are unconditionally due.... ”). See also Towers v. Chickering & Gregory (In re Pacific-Atlantic Trading Co.), 27 F.3d 401, 404 (9th Cir.1994); TRST New York Inc. v. B.B." }, { "docid": "17834098", "title": "", "text": "the lessee of an unexpired lease of nonresidential real property must pay rent as an obligation under the lease during the post-petition, pre-rejection period. 11 U.S.C. § 365(d)(3) (1994). The majority view interpreting this section is that a lessor bound by an unexpired, nonresidential lease is entitled to allowance of an administrative claim for rent without regard to the section 503 demonstration of benefit to the estate. Towers v. Chickering & Gregory (In re Pacific-Atlantic Trading Co.), 27 F.3d 401, 404 (9th Cir.1994); In re International Ventures, Inc., 215 B.R. 726, 728 (Bankr.E.D.Ark.1997); Augusta Mall Partnership v. Twigland Fashions, Inc. (In re Twigland Fashions, Inc.), 198 B.R. 199, 200 (W.D.Texas 1996); Fifth Ave. Jewelers, Inc. v. Great East Mall Inc. (In re Fifth Ave. Jewelers, Inc.), 203 B.R. 372, 383 (Bankr.W.D.Pa.1996); In re Slim Life Weight Loss Centers, Corp., 182 B.R. 701, 705 (Bankr.D.N.J.1995) (citing In re Cardian Mort. Corp., 127 B.R. 14, 16 (Bankr.E.D.Va.1991)); In re Worths Stores Corp., 135 B.R. 112, 116-17 (Bankr.E.D.Mo.1991); In re M.H.I., Inc. 61 B.R. 69, 70-71 (Bankr.D.Md.1986). But see Great Western Savings Bank v. Orvco, Inc. (In re Orvco), 95 B.R. 724, 727-28 (9th Cir. BAP 1989); In re JAS Enterprises Inc., 180 B.R. 210, 217 (Bankr.D.Neb.1995), aff'd sub nom. JAS Enterprises, Inc. v. Stock (In re JAS Enterprises, Inc.), 113 F.3d 1238 (8th Cir.1997) (unpublished table opinion); In re The Bedroom of Central Fla., Inc., 150 B.R. 982, 984 (Bankr.M.D.Fla.1993); In re Tammey Jewels, 116 B.R. 292, 294-95 (Bankr.M.D.Fla.1990). Rent paid during the pre-rejection period pursuant to section 365(d)(3) is to be paid at the full contract rate. Thinking Machines Corp. v. Mellon Financial Servs. Corp. (In re Thinking Machine Corp.), 67 F.3d 1021, 1023 (1st Cir.1995); In re Pacific-Atlantic Trading Co., 27 F.3d at 404 (citing In re Wingspread Corp., 116 B.R. 915, 925 (Bankr.S.D.N.Y.1990)). The purpose of section 365(d)(3) is to ameliorate the financial burden on lessors of nonresidential real property while the trustee decides whether to assume or reject the lease. In re Pacific-Atlantic Trading Co., 27 F.3d at 403 (quoting 130 Cong. Rec. S8894-95 (daily ed. June 29," }, { "docid": "17505597", "title": "", "text": "pay rent and other obligations contained in the lease gives rise to an administrative claim by the landlord. See In re Virginia Packaging Supply Co., 122 B.R. 491 (Bankr.E.D.Va.1990); see also In re Geonex Corp., 258 B.R. 336 (Bankr.D.Md.2001). A split of authority has developed over whether a benefit to the estate need be proven in order to collect the full amount of rent as contained in the lease agreement as an administrative expense. The majority of courts have held that § 365(d)(3) does not require the lessor to show a benefit to the estate in order to prevail on an administrative rent claim for post-petition rent. See, e.g., Norritech v. Geonex Corp. (In re Geonex Corp.), 204 B.R. 684 (D.Md.), aff'd, 120 F.3d 261, 1997 WL 471105 (4th Cir.1997); see also Thinking Machines Corp. v. Mellon Fin. Servs. Corp. (In re Thinking Machines Corp.), 67 F.3d 1021 (1st Cir.1995); In re Pacific-Atlantic Trading Co., 27. F.3d 401 (9th Cir.1994); In re Pudgie’s Dev. of NY, Inc., 239 B.R. 688 (S.D.N.Y.1999); In re Twigland Fashions, Inc., 198 B.R. 199 (W.D.Tex.1996); In re F.A. Potts & Co., Inc., 137 B.R. 13 (E.D.Pa.1992); In re Eastern Agri-Systems, Inc., 258 B.R. 352 (Bankr.E.D.N.C.2000); In re International Ventures, Inc., 215 B.R. 726 (Bankr.E.D.Ark.1997). These courts hold that the phrase “notwithstanding section 503(b)(1)” means “ ‘irrespective of whether payments required under the lease meet the usual requirements for administrative status, reasonableness and benefit to the estate, they are unconditionally due.’” In re Pudgie’s Dev. of NY, Inc., 239 B.R. at 692 (quoting In re Wingspread Corp., 116 B.R. 915, 926 (Bankr.S.D.N.Y.1990)). The minority view interprets § 365(d)(3) differently. Those courts following the minority view hold § 365(d)(3) does not abrogate the requirements imposed by § 503(b)(1). Thus, if a debtor-in-possession or trustee fails to fulfill its obligations under § 365(d)(3), the amount of the lessor’s claim is determined by § 503(d)(3) which requires a showing of a benefit to the estate before awarding a claim administrative priority. See, e.g., Broadcast Corp. of Ga. v. Broadfoot, 54 B.R. 606 (N.D.Ga.1985). We adopt the majority view and" }, { "docid": "12596061", "title": "", "text": "Communications, Inc., 148 B.R. 525, 531 (Bankr.N.D.Ill.1992) (“Pursuant to the plain language of Section 365(d)(3), the trustee or debtor in possession has a duty, prior to assumption or rejection of a lease of nonresidential real property, to make timely payment of the full rent due, from any available funds”); In re Tobago Bay Trading Co., 142 B.R. 528, 533 (Bankr.N.D.Ga.1991) (adopted majority view that “the plain meaning of the provision ‘notwithstanding section 503(b)(1) of this title’ obviates the requirement that administrative expense status be proven”) (citations omitted). To the contrary, see In re Orvco, Inc., 95 B.R. 724, 728 (9th Cir. BAP 1989) (“the language of 365(d)(3) ... does not mean that the necessity for showing the reasonableness of the rent or any of the other factors considered under section 503(b)(1)(A) has been completely abrogated”); In re Bilyk, 101 B.R. 586, 587 (Bankr.E.D.Mo.1989) (“The unexpired lease was deemed to have been rejected before the lessors filed their request for payment. Therefore, this claimant is required to establish its administrative expense status under 11 U.S.C. § 503(b)(1)(A)”); In re Daisy/Cadnetix, Inc., 126 B.R. 87, 90 (Bankr.N.D.Cal.1990) (“The Court hereby adopts the holding of Orvco that the bankruptcy estate is hable only for the actual and necessary value of nonresidential leased premises prior to assumption or rejection of the lease, rather than for the full contractual amount of the rent as set by the lease.”); In re Tammey Jewels, Inc., 116 B.R. 292, 294 (Bankr.M.D.Fla.1990) (“The 1984 amendments have not changed the necessity for showing the reasonableness of the rent or any.' of the other factors considered under § 503(b)(1)(A)”). I agree with the majority view on this issue. The statute, in mandatory language, requires performance of “all the obligations”. Rent is the primary obligation. There is no statutory predicate for the “actual” and “necessary” test of section 503(b)(1)(A) because section 365(d)(3) requires payment “notwithstanding section 503(b)(1)”. The debtors’ plaint that the abandoned premises did not confer any benefit upon the estate rings hollow because the debtors themselves elected to retain possession of the abandoned premises in the speculative but unsubstantiated hope" }, { "docid": "17834099", "title": "", "text": "see Great Western Savings Bank v. Orvco, Inc. (In re Orvco), 95 B.R. 724, 727-28 (9th Cir. BAP 1989); In re JAS Enterprises Inc., 180 B.R. 210, 217 (Bankr.D.Neb.1995), aff'd sub nom. JAS Enterprises, Inc. v. Stock (In re JAS Enterprises, Inc.), 113 F.3d 1238 (8th Cir.1997) (unpublished table opinion); In re The Bedroom of Central Fla., Inc., 150 B.R. 982, 984 (Bankr.M.D.Fla.1993); In re Tammey Jewels, 116 B.R. 292, 294-95 (Bankr.M.D.Fla.1990). Rent paid during the pre-rejection period pursuant to section 365(d)(3) is to be paid at the full contract rate. Thinking Machines Corp. v. Mellon Financial Servs. Corp. (In re Thinking Machine Corp.), 67 F.3d 1021, 1023 (1st Cir.1995); In re Pacific-Atlantic Trading Co., 27 F.3d at 404 (citing In re Wingspread Corp., 116 B.R. 915, 925 (Bankr.S.D.N.Y.1990)). The purpose of section 365(d)(3) is to ameliorate the financial burden on lessors of nonresidential real property while the trustee decides whether to assume or reject the lease. In re Pacific-Atlantic Trading Co., 27 F.3d at 403 (quoting 130 Cong. Rec. S8894-95 (daily ed. June 29, 1984) (remarks of Senator Hatch)). Such a purpose could frequently be foiled if the nonresidential lessor were required to prove an actual benefit to the estate. Furthermore, to require a claimant to demonstrate a benefit to the estate under the 503(b)(1) standard would render the section 365(d)(3) language “notwithstanding section 503(b)(1)” meaningless. In re International Ventures, Inc., 215 B.R. at 728. CONCLUSION In the instant case, section 365(d)(3) provides for payment of rent as an administrative expense whether or not the estate benefitted from use of the retail space during the post-petition period. The tenancy at will in effect at the time of the Debtor’s rejection is clearly governed by the section 365 provisions regarding unexpired leases. Section 365(d)(3) expressly offers lessors of nonresidential real property such as Dickson an entitlement to rent at the contract rate accruing during the post-petition, pre-rejection period. For the reasons stated, Dickson’s claim for post-petition rent arrearage of $1524.30 accruing from December 11, 1997, to February 23, 1998, will be allowed as an administrative expense. IT IS SO ORDERED." }, { "docid": "19086122", "title": "", "text": "Mullis notified Debtor that he intended to try to relet the property to mitigate damages and expected Debtor to attempt the same. In a commercial lease arrangement, the landlord’s attempt to relet the premises does not constitute acceptance by the landlord of the tenant’s abandonment, but is part of the landlord’s duty to mitigate damages. See Lee Development Co., 166 Ariz. at 477, 803 P.2d at 470; Riggs, 10 Ariz.App. at 251, 458 P.2d at 118. For these reasons, this Court finds that the Lease was still in effect at the time of bankruptcy. Because there was no pre-petition termination of the Lease, this Court concludes that Mullis has a post-petition, pre-rejection administrative rent claim. Trustee does not dispute that once this Court finds the lease terminated post-petition, § 365(d)(3) “con-ferís] upon a commercial lessor an administrative claim for all accrued, post-petition rent irrespective of any utility provided to the bankruptcy estate by the lease.” The Ninth Circuit recently held that § 365(d)(3) entitles the lessor to the full amount of the rent due under the nonresidential real property lease during the 60-day period pending assumption or rejection. Pacific-Atlantic Trading Co., 27 F.3d at 403. The court effectively overruled In re Orvco, 95 B.R. 724 (9th Cir. BAP 1989), in which the BAP had concluded “where a lease of nonresidential property is deemed rejected, and the trustee has not paid rent during the period prior to rejection, ‘a lessor must establish its claim for administrative status under section 503(b)(1)(A)’” by showing the fair and reasonable value conferred upon the estate by the debtor’s continued use of the property. Id. at 404 (quoting In re Orvco, 95 B.R. at 728). Mullís is not entitled to immediate payment of his administrative claim, however. Section 365(d)(3) states that the “trustee shall timely perform all the obligations of the debtor ... arising from and after- the order for relief under any unexpired lease of nonresidential real property, until such lease is assumed or rejected, notwithstanding section 503(b)(1) of this title.” Courts have interpreted the language in subsection (d)(3) in a myriad of ways, with" }, { "docid": "6496739", "title": "", "text": "in the full amount of rent and other charges under the lease without showing that the amount is reasonable or of benefit to the estate. See In re Pacific-Atlantic Trading Co., 27 F.3d 401, 404 (9th Cir.1994); In re Microvideo Learning Systems, Inc., 232 B.R. 602, 607 (Bankr.S.D.N.Y.1999); In re Wingspread Corp., 116 B.R. 915, 925 (Bankr.S.D.N.Y.1990); but see Great Western Savings Bank v. Orvco Inc. (In re Orvco, Inc.), 95 B.R. 724, 728 (9th Cir. BAP 1989) (holding that a lessor must show reasonableness of the rent and the other factors under § 503(b)(1)(A)). This Court agrees that the clause “notwithstanding section 503(b)(1)” means “irrespective of whether payments required under the lease meet the usual requirements for administrative status, reasonableness and benefit to the estate, they are unconditionally due.” In re Wingspread, 116 B.R. at 926. B. Section 365(d)(3) Requires Timely Payment of Lease Obligations Much stronger disagreement exists as to the timing of the payment of lease obligations. On its face, the statute indicates that the trustees are obligated to timely pay rent. Timing of payment is critical because “(i)n many bankruptcy cases, when a claim is paid makes the difference as to whether it will be paid at all.” In re Virginia Packaging Supply Co., 122 B.R. 491, 495 (Bankr.E.D.Va.1990). When the bankruptcy estate is solvent, the landlord is entitled to immediate payment of rent as it becomes due under the lease. See Maroon v. Four Star Pizza, Inc. (In re Four Star Pizza, Inc.), 135 B.R. 498, 500 (Bkrtcy.W.D.Pa.1992) (requiring immediate payment absent a showing of substantial doubt that there will be sufficient funds to pay all administrative claims in full); In re Granada, Inc., 88 B.R. 369, 372 (Bankr.D.Utah 1988); In re Dieckhaus Stationers of King of Prussia, Inc., 73 B.R. 969, 973 (Bkrtcy.E.D.Pa.1987). However, when there is a risk of insolvency, the effect of requiring immediate payment of the lease obligations is to give lessors a superpriority administrative expense claim. In this case, the bankruptcy estate is administratively insolvent because distribution to the secured creditors and United States Trustee exhausted the entire proceeds from" }, { "docid": "17834097", "title": "", "text": "(plain language of section 365(d)(3) requires performance of all the obligations of the chapter 11 debtor under an unexpired commercial lease of realty until assumption or rejection). Administrative expense claims are governed by section 503, which provides that “there shall be allowed administrative expenses ... including ... the actual, necessary costs and expenses of preserving the estate, including wages, salaries, or commissions for services rendered after the commencement of the case.” 11 U.S.C. § 503(b)(1) (1994). The language of this statute has generally been construed to mean that in order to claim administrative expense, a creditor must demonstrate that the expense actually benefitted the estate. Security Bank of Marshalltown v. Neiman, 1 F.3d 687, 691 (8th Cir.1993); General Am. Transp. Corp. v. Martin (In re Mid Region Petroleum, Inc.), 1 F.3d 1130, 1132 (10th Cir.1993); In re Strause, 40 B.R. 110, 112 (Bankr.W.D.Wis.1984) (citing In re Cardinal Export Corp., 30 B.R. 682 (Bankr.E.D.N.Y.1983)). However, the duty to perform imposed by section 365(d)(3) carves out a special exception for nonresidential real property leases. Under section 365(d)(3) the lessee of an unexpired lease of nonresidential real property must pay rent as an obligation under the lease during the post-petition, pre-rejection period. 11 U.S.C. § 365(d)(3) (1994). The majority view interpreting this section is that a lessor bound by an unexpired, nonresidential lease is entitled to allowance of an administrative claim for rent without regard to the section 503 demonstration of benefit to the estate. Towers v. Chickering & Gregory (In re Pacific-Atlantic Trading Co.), 27 F.3d 401, 404 (9th Cir.1994); In re International Ventures, Inc., 215 B.R. 726, 728 (Bankr.E.D.Ark.1997); Augusta Mall Partnership v. Twigland Fashions, Inc. (In re Twigland Fashions, Inc.), 198 B.R. 199, 200 (W.D.Texas 1996); Fifth Ave. Jewelers, Inc. v. Great East Mall Inc. (In re Fifth Ave. Jewelers, Inc.), 203 B.R. 372, 383 (Bankr.W.D.Pa.1996); In re Slim Life Weight Loss Centers, Corp., 182 B.R. 701, 705 (Bankr.D.N.J.1995) (citing In re Cardian Mort. Corp., 127 B.R. 14, 16 (Bankr.E.D.Va.1991)); In re Worths Stores Corp., 135 B.R. 112, 116-17 (Bankr.E.D.Mo.1991); In re M.H.I., Inc. 61 B.R. 69, 70-71 (Bankr.D.Md.1986). But" }, { "docid": "14984758", "title": "", "text": "any unexpired lease of nonresidential real property until such lease is assumed or rejected, notwithstanding section 503(b)(1) of this title. 11 U.S.C. § 365(d)(3). That performance obligation applies equally to all estate representatives. 11 U.S.C. § 103(a); 11 U.S.C. § 1107(a). Section 365(d)(3) was added to the Bankruptcy Code by the Bankruptcy Amendments and Federal Judgment Act of 1984, Pub.L. 98-353, 98 Stat. 333 (1984) (the “1984 Amendments”). Prior to the 1984 Amendments, debtors and trustees were not required to immediately pay rental obligations during the period between the filing of the case and the date of the assumption or rejec tion of a nonresidential real property lease. In re New Almacs, Inc., 196 B.R. 244, 247 (Bankr.N.D.N.Y.1996). Therefore, a commercial lessor was forced to extend credit to the bankruptcy estate during the period in which the estate representative decided whether to assume or reject the lease. See In re Leisure Time Sports, Inc., 189 B.R. 511, 513 (Bankr.S.D.Cal.1995). The lessor’s rental claim was treated as an administrative claim, usually measured by the reasonable value of the estate’s use and occupancy of the premises, and was paid, if at all, with other administrative claimants. New Almacs, 196 B.R. at 247. The amended § 365(d)(3) was intended to ease the immediate financial burden borne by the lessors of nonresidential real property by requiring the estate representative to “timely perform” the debtor’s obligations under the lease. Towers v. Chickering & Gregory (In re Pacific-Atlantic Trading Co.), 27 F.3d 401, 403 (9th Cir.1994). The legislative history of § 365(d)(3) evidences Congress’ belief that, “[t]his timely performance requirement [would] insure that debtor/tenants pay their rent, common area, and other charges [at the time required in the lease] pending the trustee’s assumption or rejection of the lease.” In re Longua, 58 B.R. 503, 505 n. 1 (Bankr.W.D.Wis.1986) (quoting H.R.Conf.Rep. No. 882, 98th Cong., 2d Sess. (1984), reprinted in 1984 U.S.C.C.A.N. 576). In interpreting the effect of the amended § 365(d)(3), courts have uniformly held that it requires that the estate representative pay the rent as it becomes due. Great Western Savings Bank v. Orvco, Inc." }, { "docid": "3083616", "title": "", "text": "140 B.R. 116, 121 (Bankr.W.D.N.C.1992); See, 3 Collier on Bankruptcy, Paragraph 365.04[3][f][ii] at 365-39 (15 ed.1997). The literal language of Section 365(d)(3) which requires a trustee to perform all obligations under leases of nonresidential real property, including the obligation to make timely rent payments, is interpreted to waive the requirement that the lessor must demonstrate that the estate benefited from the post-petition rental charge which would otherwise be required pursuant to Section 503(b)(1) of the Bankruptcy Code. Id. A minority of courts have interpreted Section 365(d)(3) to continue to require the lessor to show the value received by the estate during the period preceding rejection of the lease pursuant to Section 503(b)(1). See, e.g., In re Tammey Jewels, Inc., 116 B.R. 292, 295 (Bankr.M.D.Fla.1990); Great Western Savings Bank v. Orvco, Inc. (In re Orvco, Inc.), 95 B.R. 724, 728 (9th Cir. BAP 1989). However, this interpretation fails to give effect to the language in Section 365(d)(3) that the trustee must comply with all lease obligations “notwithstanding section 503(b)(1) of this title .” Towers v. Chickering & Gregory (In re Pacific-Atlantic Trading Co.), 27 F.3d at 404-405; In re Compuadd Corporation, 166 B.R. at 865. The plain language of Section 365(d)(3) mandates the trustee to comply with all obligations of the debtor with regard to any unexpired lease of non-residential real property until it is assumed or rejected regardless of Section 503(b)(1). In re Compuadd Corporation, 166 B.R. at 864. Furthermore, the legislative history shows that Congress enacted Section 365(d)(3) to protect commercial landlords because they were forced to provide current services without current payment pending the assumption or rejection of the lease. Great Western Savings Bank v. Orvco, Inc. (In re Orvco, Inc.), 95 B.R. at 727. The plain language of the statute shall control. A debtor or trustee must pay all normal rental payments in commercial space until the lease is rejected. Administrative Priority of Claim. Courts also disagree on whether the lessor is entitled to a “super-priority” administrative claim for rent during the period preceding the rejection of the lease. The courts that recognize the super-priority status of" }, { "docid": "3083617", "title": "", "text": "& Gregory (In re Pacific-Atlantic Trading Co.), 27 F.3d at 404-405; In re Compuadd Corporation, 166 B.R. at 865. The plain language of Section 365(d)(3) mandates the trustee to comply with all obligations of the debtor with regard to any unexpired lease of non-residential real property until it is assumed or rejected regardless of Section 503(b)(1). In re Compuadd Corporation, 166 B.R. at 864. Furthermore, the legislative history shows that Congress enacted Section 365(d)(3) to protect commercial landlords because they were forced to provide current services without current payment pending the assumption or rejection of the lease. Great Western Savings Bank v. Orvco, Inc. (In re Orvco, Inc.), 95 B.R. at 727. The plain language of the statute shall control. A debtor or trustee must pay all normal rental payments in commercial space until the lease is rejected. Administrative Priority of Claim. Courts also disagree on whether the lessor is entitled to a “super-priority” administrative claim for rent during the period preceding the rejection of the lease. The courts that recognize the super-priority status of the claim rely on the language in Section 365(d)(3) which requires the trustee to “timely perform all the obligations of the debtor.” In re Telesphere Communications, Inc., 148 B.R. 525, 531 (Bankr.N.D.Ill.1992). However, a majority of courts require the lessor to stand in line with the other administrative claimants. See, e.g., In re Joseph C. Spiess Company, 145 B.R. 597, 607-608 (Bankr.N.D.Ill.1992), citing In re CSVA Inc., 140 B.R. 116, 121 (Bankr.W.D.N.C.1992), In re Virginia Packaging Supply Co., 122 B.R. 491, 495 (Bankr.E.D.Va.1990), In re Wingspread Corp., 116 B.R. 915, 932 (Bankr.S.D.N.Y.1990). These courts reasoned that the language in Section 365(d)(3) does not expressly elevate post-petition claims to super-priority status. Id. All claims subject to super-priority administrative status are listed in Section 364 of the Bankruptcy Code. Post-petition rent payments are not included. Id. Congress knew how to grant super-priority status and did not expressly do so under Section 365(d)(3). Id. Accordingly, the better approach is to literally interpret the statute and to reject any super-priority administrative status for the lessor’s claim. The lessor is" }, { "docid": "6496738", "title": "", "text": "Fruchter, To Bind or Not To Bind—Bankruptcy Code § 365(d)(8): Statutory Minefield, 68 Am.Bankr.L.J. 437, 439 (1994) (commenting that “each clause construed has triggered considerable debate as to its intent and meaning”). In order to decide whether Omni is entitled to distribution from the proceeds of the sale of Debtors’ assets this Court must consider: (A) whether a landlord must show the actual value of the use and occupancy to the bankruptcy estate; (B) the timing of payment to the landlord; and (C) the landlord’s remedy for the failure of the trustee or debtor to pay the lease obligations during the post-petition, pre-rejection period. A. Section 503(b)(l)’s “Benefit Test” is Not Applicable to § 365(d)(3) Obligations Prior to the amendment of § 365(d)(3), debtors were obligated to pay rent as an administrative expense of the bankruptcy estate, but only to the extent to which the lease payments were “actual, necessary costs and expenses” under § 503(b)(1). 11 U.S.C. § 503(b)(1). The majority of courts agree that § 365(d)(3) now gives landlords a right to payment in the full amount of rent and other charges under the lease without showing that the amount is reasonable or of benefit to the estate. See In re Pacific-Atlantic Trading Co., 27 F.3d 401, 404 (9th Cir.1994); In re Microvideo Learning Systems, Inc., 232 B.R. 602, 607 (Bankr.S.D.N.Y.1999); In re Wingspread Corp., 116 B.R. 915, 925 (Bankr.S.D.N.Y.1990); but see Great Western Savings Bank v. Orvco Inc. (In re Orvco, Inc.), 95 B.R. 724, 728 (9th Cir. BAP 1989) (holding that a lessor must show reasonableness of the rent and the other factors under § 503(b)(1)(A)). This Court agrees that the clause “notwithstanding section 503(b)(1)” means “irrespective of whether payments required under the lease meet the usual requirements for administrative status, reasonableness and benefit to the estate, they are unconditionally due.” In re Wingspread, 116 B.R. at 926. B. Section 365(d)(3) Requires Timely Payment of Lease Obligations Much stronger disagreement exists as to the timing of the payment of lease obligations. On its face, the statute indicates that the trustees are obligated to timely pay rent." } ]

[ { "docid": "22671360", "title": "", "text": "WILLIAM A. FLETCHER, Circuit Judge. We review a denial of asylum for petitioner Tilahun Fantaye Desta. Desta applied for asylum after leaving Ethiopia, where he claims to have been beaten and imprisoned for his participation in two political groups that oppose the Ethiopian government. The Immigration Judge (“IJ”) found Desta not credible and denied his application. The Board of Immigration Appeals (“BIA”) affirmed. Desta timely petitioned this court for a review of the BIA’s decision. Because the BIA’s decision (and the IJ’s decision underlying it) is supported by substantial evidence, we deny Desta’s petition for review. In addition to denying Desta’s application for asylum, the IJ granted Desta a sixty-day voluntary departure period, beginning on the date of his decision on Desta’s application for asylum. The BIA then renewed the voluntary departure, period, granting Desta thirty days to depart, now beginning on the date of the BlA’s decision. Twenty-five days after the BIA’s decision, Desta moved in this court for a stay of removal. The government filed a statement of non-opposition, and we continued the temporary stay of removal pursuant to this circuit’s General Order 6.4(c). Desta later filed a motion to stay voluntary departure, but when he filed this motion his thirty-day voluntary departure period had expired. The substantive standards are the same for granting a motion to stay removal and a motion to stay voluntary departure; We construe Desta’s motion to stay removal, filed within the thirty-day period, as including a timely motion to stay voluntary departure. Thus we hold that the temporary stay continued under General Order 6.4(c) stays not only removal but also voluntary departure. The stay of voluntary departure preserves the number of remaining days Desta had to depart voluntarily while we consider the merits of Des-ta’s petition for review. I. Background Desta entered the United States on a tourist visa on July 13, 1996. He applied for asylum, but the application was denied, and the former Immigration and Naturalization Service (“INS”) instituted removal proceedings. In the removal proceedings, Desta requested asylum and withholding of removal. Desta and his former wife are from the Addis" } ]

[ { "docid": "22760424", "title": "", "text": "exceptions to this rule, but Membreno does not claim, and cannot claim, that either exception applies here. See Singh, 315 F.3d at 1188 (noting that court of appeals can assert jurisdiction over untimely petitions for review where alien was officially misled as to time in which to file notice of appeal or where BIA failed to comply with certain federal regulations requiring the mailing of its decision to the petitioner's (or his counsel’s) address of record). . We cannot here grant relief on the petition for review by construing Membreno's motion to reopen instead as a motion to reconsider. See Mohammed v. Gonzales, 400 F.3d 785, 792 (9th Cir.2005) (affirming the BIA’s decision to construe a motion to reconsider as a motion to reopen when the motion alleged new facts rather than legal error). A motion to reconsider must be filed \"within 30 days after the mailing of the Board decision,” 8 C.F.R. § 1003.2(b)(2), and Membreno's motion was filed nearly 90 days after the initial decision. Furthermore, a motion to reconsider \"shall state the reasons for the motion by specifying the errors of fact or law in the prior Board decision....” 8 C.F.R. § 1003.2(b)(1). Membreno’s motion does not point to any alleged errors of fact or law in the original BIA decision, but rather asserts a new legal argument not originally before the Board." }, { "docid": "22760423", "title": "", "text": "hearing....” 8 C.F.R. § 1003.2(c)(1). The BIA did not abuse its discretion when it declined to reopen proceedings because Membreno presented no new facts in her motion to reopen. DISMISSED in part and DENIED in part. . We adopt much of our factual statement and procedural history from the summary set forth in the earlier three-judge panel opinion at Membreno v. Ashcroft, 385 F.3d 1245, 1246-47 (9th Cir.) (per curiam), withdrawn by 388 F.3d 738 (9th Cir.2004). . The Department of Justice transferred the functions of the Immigration and Naturalization Service to the Department of Homeland Security in March 2003. See Homeland Security Act of 2002, Pub.L. No. 107-296, § 471, 116 Stat. 2135, 2205 (codified at 6 U.S.C. § 291) (2002). For convenience, we refer to the INS throughout rather than the Department of Homeland Security. . Because the BIA summarily affirmed the IJ’s decision we review the IJ's decision as if it were the BIA's decision. Thomas v. Gonzales, 409 F.3d 1177, 1182 (9th Cir.2005) (en banc). . Our case law recognizes two exceptions to this rule, but Membreno does not claim, and cannot claim, that either exception applies here. See Singh, 315 F.3d at 1188 (noting that court of appeals can assert jurisdiction over untimely petitions for review where alien was officially misled as to time in which to file notice of appeal or where BIA failed to comply with certain federal regulations requiring the mailing of its decision to the petitioner's (or his counsel’s) address of record). . We cannot here grant relief on the petition for review by construing Membreno's motion to reopen instead as a motion to reconsider. See Mohammed v. Gonzales, 400 F.3d 785, 792 (9th Cir.2005) (affirming the BIA’s decision to construe a motion to reconsider as a motion to reopen when the motion alleged new facts rather than legal error). A motion to reconsider must be filed \"within 30 days after the mailing of the Board decision,” 8 C.F.R. § 1003.2(b)(2), and Membreno's motion was filed nearly 90 days after the initial decision. Furthermore, a motion to reconsider \"shall state the" }, { "docid": "22696726", "title": "", "text": "of the mandate, or further order of the court.” Rivera could have voluntarily departed at any time after the BIA’s decision, including during the pendency of the appellate proceedings, without prejudicing her appeal. See Mendez-Alcaraz v. Gonzales, 464 F.3d 842, 844 (9th Cir.2006) (noting that departure from the United States does not terminate jurisdiction). She will have yet another period for voluntary departure once we issue our mandate. The ability to delay finality over an issue such as voluntary departure illustrates an institutional failing in these asylum cases. By petitioning the Ninth Circuit for review, an undocumented alien greatly extends an illegitimate stay in the United States of America. Even in cases where the court has denied a petition on the merits, questions of voluntary departure lead to more delay. See, e.g., Padilla-Padilla, 463 F.3d at 982 (denying petitioner’s claim on the merits, but remanding for determination whether reduction of voluntary departure period was appropriate). It is clear that the mere filing of a petition for review no longer automatically stays the removal of an alien pending the court’s decision on the petition. 8 U.S.C. § 1252(b)(3)(B); cf. 8 U.S.C. § 1105a(a)(3) (repealed 1996) (providing for automatic stay of deportation in most cases upon service of the petition for review). Practically speaking, however, unopposed stays are granted as a matter of course. See 9th Cir. Gen. Order 6.4(c) (setting forth procedures for stays of deportation or removal). If the Attorney General files either a notice of non-opposition to the stay or fails to respond altogether, the automatic temporary stay is extended without consideration of the sub- stance of the motion. See De Leon v. INS, 115 F.3d 643, 644 (9th Cir.1997) (finding that the filing of a request for stay automatically stays a petitioner’s removal until the court rules on the stay motion). In this practice, the Ninth Circuit is failing to undertake the appropriate analysis required by our precedent. See Abbassi v. INS, 143 F.3d 513, 514 (9th Cir.1998) (“We evaluate stay requests under the same standards employed by district courts in evaluating motions for preliminary injunc-tive relief.”). Instead" }, { "docid": "23273768", "title": "", "text": "in his motion to reconsider—and argues again here—in the alternative (1) that his pending petition for review before this Court rendered the BIA’s decision non-final, and therefore the 90-day period had not yet begun to run; (2) that his pending petition for review before this Court equitably tolled the 90-day period; or (3) that the BIA should have granted the motion on humanitarian grounds notwithstanding its untimeliness. The BIA’s denial of a motion to reopen or reconsider is reviewed for abuse of discretion. See Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir.2006). The BIA abuses its discretion if it acts arbitrarily or capriciously, that is, when it provides no rational explanation, departs from established policies without explanation, or justifies its decision with only conclusory statements. See Kaur v. BIA, 413 F.3d 232, 234 (2d Cir.2005) (per curiam). Here the BIA acted well within its discretion. With some exceptions not relevant here, a motion to reopen “shall be filed within 90 days of the date of entry of a final administrative order of removal.” ’ 8 U.S.C. § 1229a(e)(7)(C)(i). See also 8 C.F.R. § 1003.2(c)(2). Chen’s motion to reopen was therefore late—by approximately three years and eight months. Chen’s argument that the BIA’s decision was not “final” until this Court had reviewed it is unavailing. Courts have long recognized that the filing of a motion to reopen before the BIA does not impact the finality of a removal order, see Stone v. INS, 514 U.S. 386, 405-06, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995), and that therefore the limitations period for a petition for review of a “final order of removal” under 8 U.S.C. § 1252(b)(1) begins to run immediately upon the order’s issuance by the BIA, see Kaur, 413 F.3d at 233 (citing Stone, 514 U.S. at 405-06, 115 S.Ct. 1537). Likewise, we see no reason why the filing of a petition for review should affect finality. Indeed, this Court has jurisdiction to review only petitions for review of final orders of removal. See 8 U.S.C. § 1252(d). If Chen were correct that an order of the" }, { "docid": "10704904", "title": "", "text": "Cir.2007) (quoting Meraz-Reyes v. Gonzales, 436 F.3d 842, 843 (8th Cir.2006) (per curiam)); see 8 U.S.C. § 1252(a)(2)(B)(i) (\"Notwithstanding any other provision of law ... no court shall have jurisdiction to review any judgment regarding the granting of relief under section ... 1229(b)....”). . This opinion was left intact by Kucana v. Holder, - U.S. -, 130 S.Ct. 827, — L.Ed.2d - (2010), which ”express[ed] no opinion on whether federal courts may review the Board’s decision not to reopen removal proceedings sua sponte.” Id. at 839 n. 18. . One could possibly argue that by treating Ochoa’s motion as one filed under § 1003.2(c), if indeed it did, the Board necessarily provided us a plausible meaningful standard we would normally find lacking in the sua sponte context. Yet, even were we to circumvent the wall we find firmly erected by Tamenut and review the BIA's November 2, 2007, order, we would dismiss nonetheless. The BIA acted within its discretion in determining that Ochoa failed to meet her \"heavy burden” and in denying her motion to reopen. Matter of Coelho, 20 I & N Dec. at 473; Matter of Lozada, 19 I & N Dec. at 638-39. COLLOTON, Circuit Judge, concurring in part and dissenting in part. The parties agree that this court should review the decision of the Board of Immigration Appeals (“BIA”) denying Ana Rosa Ochoa’s motion to reopen her removal proceedings. I disagree with the court’s contrary conclusion, and I further conclude that the BIA abused its discretion in denying the motion. Therefore, I would remand the case for further proceedings. An alien may file one motion to reopen removal proceedings as of right, as long as the motion is filed within ninety days after the date on which the final administrative decision is rendered. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). We review the BIA’s decision on such a motion under a deferential abuse-of-discretion standard. Kucana v. Holder, — U.S. -, —, 130 S.Ct. 827, 834, — L.Ed.2d -, -(2010). The governing regulations also provide that the BIA “may at any time reopen or reconsider on" }, { "docid": "23181983", "title": "", "text": "reopen. The BIA denied the second motion to reopen by order dated October 6, 2005, deciding that it exceeded the numerical limitations for motions to reopen, under 8 C.F.R. § 1003.2(c)(2). On May 11, 2006, a panel of this Court granted Petitioner’s motion for stay of removal pending judicial review of the BIA’s decision denying her second motion to reopen. The BIA’s denial of Petitioner’s second motion to reopen is now before us. II. Analysis A. Motion to Reopen The denial of a motion to reopen is reviewed for abuse of discretion. Had-dad v. Gonzales, 437 F.3d 515, 517 (6th Cir.2006). An abuse of discretion occurs when the denial to reopen “was made without a rational explanation, inexplicably departed from established policies, or rested on an invidious discrimination against a particular group.” Id. (quoting Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir.2005)). Issues of law are reviewed de novo by this Court. Id. The Board did not abuse its discretion in denying Petitioner’s second motion to reopen as numerically barred. Section 240 of the Immigration and Nationality Act (INA), which governs removal proceedings, provides that an alien who is ordered removed may file only one motion to reopen. 8 U.S.C. § 1229a(c)(7)(A) (2006). Furthermore, 8 C.F.R. § 1003.2(c)(2) provides that “[ejxcept as provided in paragraph (c)(3) of this section, an alien may file only one motion to reopen removal proceedings (whether before the Board or the Immigration Judge) and that motion must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened.” 8 C.F.R. § 1003.2(c)(2) (2007). Section 1003.2(c)(3) provides four exceptions to the time and numeric bar for motions to reopen; none are applicable here. See 8 C.F.R. § 1003.2(e)(3). Petitioner filed her first motion to reopen on September 3, 2002, and her second motion to reopen on the basis of ineffective assistance of counsel in 2005. The second is clearly subject to the numerical bar of 8 C.F.R. § 1003.2(c)(2). Because the BIA based its decision on this ground, the BIA was" }, { "docid": "22761562", "title": "", "text": "their reply, Petitioners argue that members of their proposed social group are “easily identified,” but they do not address at all the issue of the breadth of the proposed group. Petitioners’ Reply, pp. 18-19. As for their claim for withholding of removal, to qualify Petitioners must prove it is “more likely than not” that they will be persecuted on account of a statutorily-protected ground. See Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir.2001). As we have already held that the BIA did not err in holding that the particular social group identified by the Petitioners is insufficient to merit asylum protection, we also hold that Petitioners fail to present a prima facie case for withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003) (holding that an applicant who fails to satisfy the lower standard of proof for asylum necessarily fails to satisfy the more stringent standard for withholding of removal). Accordingly, Petitioners’ motion to reopen did not establish prima facie eligibility for asylum or withholding of removal. Finally, with regard to their application for protection under the CAT, Petitioners must establish that it is more likely than not that they would be tortured if returned to Mexico. 8 C.F.R. § 208.16(c)(2); Soriano v. Holder, 569 F.3d 1162, 1167 (9th Cir.2009). Petitioners’ generalized evidence of violence and crime in Mexico is not particular to Petitioners and is insufficient to meet this standard. Thus, Petitioners also failed to establish prima facie eligibility for protection under the CAT. Nuru v. Gonzales, 404 F.3d 1207, 1216 (9th Cir.2005). In conclusion, Petitioners failed to demonstrate that reopening their case was warranted. The BIA did not abuse its discretion by so holding. Respondent’s motion for summary disposition is granted. IV. The motion to proceed in forma pauperis is granted. The Clerk shall amend the docket to reflect this status. All other pending motions are denied as moot. The temporary stay of removal shall continue in effect until issuance of the mandate. PETITION FOR REVIEW DENIED. . Respondent argues in the motion for summary disposition that the petition for review should be" }, { "docid": "828851", "title": "", "text": "Jahjaga contends that neither he, nor his attorney, received the BIA’s August 17 decision until it was mailed to his counsel on November 1, 2005. Jahjaga accordingly argues that his motion to reconsider, which was filed with the BIA on November 30, is timely because it was filed within 30 days of the date of the order’s mailing on November 1. See 8 C.F.R. § 1003.2(b)(2). As a result of actions taken by Jahjaga’s counsel in writing to the BIA in September and responding to the BIA’s October order denying reissuance, we assume without deciding that the motion was timely. On May 1, 2006, the BIA denied Jahja-ga’s motion to reconsider. The BIA held that the motion was untimely as Jahjaga failed to file it within thirty days of August 17, 2005. Jahjaga then petitioned this Court for review. B. Petitioner Goce Gjeroski (“Gjeroski”) is a native of Macedonia and essentially claimed that his coerced military service by Macedonia qualified him for relief. An IJ denied his applications for asylum, withholding of removal, and protection under the Convention Against Torture on September 7, 2004. The BIA affirmed the IJ on December 28, 2005. As in Jahjaga’s case, the Government claims the BIA mailed the decision by regular mail to Gjeroski’s counsel at the address on record. Gjeroski’s counsel claims he never received the decision. Gjeroski contends he only learned of the BIA’s decision after receiving a Notice to Surrender for removal on May 16, 2006. Gjeroski then filed a motion asking the BIA to reissue the December 28, 2005 decision so he could file a timely petition with this Court for review. The BIA denied this motion on June 20, 2006. In its opinion, the BIA essentially provided the same reasons as it expressed in Jahjaga’s case for denying Jahjaga’s motion, stating: “the decision was mailed to the address provided by counsel on a Notice of Entry of Appearance before the Board” and that “there is no error attributable to the Board in the service of its decision to counsel.” C. Because both appeals require us to address the same" }, { "docid": "23181979", "title": "", "text": "appeal, it may be dismissed as untimely.” Petitioner chose to appeal the IJ’s decision to the BIA but did not file a motion to reopen her case. On June 5, 2001, petitioner’s counsel mailed the notice of appeal to the BIA via U.S. Postal Service Express Mail but failed to ensure it was sent via next-day delivery. Petitioner’s appeal was not received by the BIA until June 7, 2001. For this reason, the BIA dismissed the appeal as untimely on August 8, 2002. See 8 C.F.R. §§ 1003.38(b)-(c). Petitioner’s counsel then moved the IJ to reopen and, in the alternative, to reconsider, petitioner’s case. The motion was dated August 30, 2002, but it was not filed with the Immigration Court until September 3, 2002. Petitioner’s counsel failed to pay the filing fees for the motions. The IJ denied the motions on September 10, 2002, noting that: • the petitioner failed to include a fee receipt as required by 8 C.F.R. § 1003.23(b)(l)(ii); • the motion to reconsider was filed more than thirty days after the entry of the May 7, 2001, order, which was the order petitioner wanted the court to reconsider; • the petitioner was no longer eligible for cancellation of removal, since she had remained in the United States beyond the date set for her voluntary departure, see 8 U.S.C. § 1229c(d); and • petitioner did not support her motion to reopen with a copy of the application for the relief requested, see8 C.F.R. § 1003.23(b)(3). On October 10, 2002, petitioner timely appealed the IJ’s decision to the BIA. On November 28, 2003, the BIA affirmed the IJ’s decision without opinion, pursuant to 8 C.F.R. § 1003.1(e)(4), thereby rendering the IJ’s September 10, 2002, decision the final agency determination for purposes of judicial review. Petitioner then petitioned this court for review of the IJ’s September 10, 2002, decision. Tapia-Martinez v. Gonzales, 142 Fed.Appx. 882, 883-84 (6th Cir.2005). This Court denied the petition for review on July 28, 2005, see id. at 886, holding that the BIA did not abuse its discretion in denying Petitioner’s motion to reopen, or" }, { "docid": "22779221", "title": "", "text": "June 5, 2002, the petitioner filed with the BIA a timely motion to reconsider. On October 10, 2002, in another per curiam order, the agency acknowledged the petitioner’s request that the BIA “not penalize [him] for the Airborne error which caused the delay in the submission of [his] appeal.” In re Zhong Guang Sun, No. [ AXX-XXX-XXX ], slip op. at 1 (B.I.A. Oct. 10, 2002) (per curiam). It denied the motion, however, stating: We note that a notice of appeal must be received at the Board within 30 days from the date of the Immigration Judge’s decision (or mailing date of the decision if later). See 8 C.F.R. § 3.38(b)[.] A date-stamp is placed on all filings received at the Clerk’s Office, and is controlling in the computation of timely filing. We note also, that the regulations set strict deadlines for the filing of an appeal, and the Board does not have the authority to extend the time in which to file a Notice of Appeal. See 8 C.F.R. § 3.38(b). Accordingly, the motion to reconsider is denied. Id. (emphasis added). Sun petitions this Court for review of the BIA’s October 10 order. Although he also asserts in his petition that he established a well-founded fear of persecution entitling him to asylum and withholding of removal, our review of the BIA’s order is limited to the question whether the BIA abused its discretion in denying, as barred by applicable regulations containing time limitations, Sun’s motion to reconsider its dismissal of his appeal. DISCUSSION I. Standard of Review We review for abuse of discretion the BIA’s denial of a motion to reconsider. See Salta v. INS, 314 F.3d 1076, 1078 (9th Cir.2002); Mardones v. McElroy, 197 F.3d 619, 624 (2d Cir.1999) (applying the abuse of discretion standard to a motion to reopen). In doing so, “[w]e review the BIA’s underlying conclusions of law de novo, with the caveat that the BIA’s interpretations of ambiguous provisions of the [Immigration and Nationality Act] are owed substantial deference unless ‘arbitrary, capricious, or manifestly contrary to the statute.’ ” Id. (quoting Chevron, U.S.A., Inc." }, { "docid": "19914870", "title": "", "text": "1003.2(a), or on the basis of equitable tolling. The BIA denied the motion to reopen as untimely. The petitioners again filed a petition for review with this court, which we consolidated with the pending petition on the merits. On November 15, 2006, we denied in part, dismissed in part, and granted in part the consolidated petition for review. In relevant part, we held that the BIA did not abuse its discretion by denying the motion to reopen as untimely, but that it erred by improperly reducing the voluntary departure period from 60 to 30 days. We remanded to the BIA for further proceedings with respect to voluntary departure. Following remand, the BIA on May 3, 2007, issued an order vacating the November 3, 2004 decision insofar as it granted 30 days of voluntary departure and ordered that the petitioners depart within 60 days. The petitioners filed a second motion to reopen with the BIA on June 20, 2007, again urging it to consider the new evidence regarding their youngest son’s disability. In connection with the 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" }, { "docid": "23181984", "title": "", "text": "Immigration and Nationality Act (INA), which governs removal proceedings, provides that an alien who is ordered removed may file only one motion to reopen. 8 U.S.C. § 1229a(c)(7)(A) (2006). Furthermore, 8 C.F.R. § 1003.2(c)(2) provides that “[ejxcept as provided in paragraph (c)(3) of this section, an alien may file only one motion to reopen removal proceedings (whether before the Board or the Immigration Judge) and that motion must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened.” 8 C.F.R. § 1003.2(c)(2) (2007). Section 1003.2(c)(3) provides four exceptions to the time and numeric bar for motions to reopen; none are applicable here. See 8 C.F.R. § 1003.2(e)(3). Petitioner filed her first motion to reopen on September 3, 2002, and her second motion to reopen on the basis of ineffective assistance of counsel in 2005. The second is clearly subject to the numerical bar of 8 C.F.R. § 1003.2(c)(2). Because the BIA based its decision on this ground, the BIA was not obliged to address the substantive argument—ineffective assistance of counsel—in denying the motion to reopen. See Daniels v. United States, 532 U.S. 374, 381, 121 S.Ct. 1578, 149 L.Ed.2d 590 (2001) (“Procedural barriers, such as statutes of limitations and rules concerning procedural default and exhaustion of remedies, operate to limit access to review on the merits of a constitutional claim.”). Petitioner nonetheless claims that, under the theory of equitable tolling, she should be permitted to file a second motion to reopen. “Strictly defined, equitable tolling is ‘[t]he doctrine that the statute of limitations will not bar a claim if the plaintiff, despite diligent efforts, did not discover the injury until after the limitations period had expired.’ ” Luntungan v. Attorney Gen., 449 F.3d 551, 557 (3d Cir.2006) (per curiam) (quoting Blacks Law Dictionary 579 (8th ed.2004)). The Second, Fourth, and Ninth Circuits have expressly applied equitable tolling to cases involving the numeric bar on motions to reopen. See Zhao v. INS, 452 F.3d 154, 156-57 (2d Cir.2006); Iturribarria v. INS, 321 F.3d 889, 897-98 (9th" }, { "docid": "22869844", "title": "", "text": "departs, a court of appeals \"may entertain a petition after the alien has departed.\" Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1171 (citing 8 U.S.C. § 1252(b)(3)(B)) (emphasis added). Accordingly, petitions for review to the court of appeals do not present the same “conundrum” with which we are presented here. Moreover, this circuit has held that it has the equitable power to stay the voluntary departure period while reviewing a removal order. See El Himri v. Ashcroft, 344 F.3d 1261, 1262 (9th Cir.2003). .8 C.F.R. § 1240.26(f) provides, in part: “Authority to extend the time within which to depart voluntarily specified initially by an immigration judge or the Board is only within the jurisdiction of the district director, the Deputy Executive Associate Commissioner for Detention and Removal, or the Director of the Office of Juvenile Affairs.” See also Desta, 365 F.3d at 747 (noting that extending the period for voluntary departure would be \"in contravention of INS regulations.”). . 8 C.F.R. § 1003.2(f) contains an exception for motions filed pursuant to the provisions of §§ 1003.23(b)(4)(ii) and 1003.23(b)(4)(iii)(A), neither of which is applicable here. . The only Ninth Circuit case of which we are aware to address this regulation (albeit in its earlier but identical incarnation as 8 C.F.R. 3.2(f)) held that it applies to the BIA's decision to rescind an alien's status as a lawful permanent resident. See Baria v. Reno, 180 F.3d 1111, 1113 (9th Cir.1999). Like a deportation order, and unlike a grant of voluntary departure, a rescission order is a decision which must be executed by the gov- eminent. Thus, the Baria court’s holding is entirely consistent with our reasoning here. . Because we find that Azarte controls this portion of the BIA's ruling, we need not reach Barroso’s equal protection claim on this issue. . In its brief, the government stated that Barroso’s motion asserted ineffective assistance of counsel “as the sole basis for relief.” However, this claim is directly refuted by the record which clearly shows that Barroso's motion to reconsider stated two arguments: (1) \"respondent was inadequately represented,” and (2) \"the respondent was denied" }, { "docid": "22179292", "title": "", "text": "one motion to reopen proceedings. 8 U.S.C. § 1229a(c)(7)(A); 8 C.F.R. § 1003.2(c)(2). The motion to reopen must be filed within ninety days of the final administrative order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). The motion must “state the new facts that will be proven at a hearing to be held if the motion is grant ed.” 8 U.S.C. § 1229a(e)(7)(B); 8 C.F.R. § 1003.2(c)(1). The governing regulations also provide that the BIA may reopen proceedings on its own motion. The relevant provision states in full: (a) General. The Board, may at any time reopen or reconsider on its own motion any case in which it has rendered a decision. A request to reopen or reconsider any case in which a decision has been made by the Board, which request is made by the Service, or by the party affected by the decision, must be in the form of a written motion to the Board. The decision to grant or deny a motion to reopen or reconsider is within the discretion of the Board, subject to the restrictions of this section. The Board has discretion to deny a motion to reopen even if the party moving has made out a prima facie case for relief. 8 C.F.R. § 1003.2(a) (first emphasis added). The present version of this regulation was promulgated in 1996, pursuant to statutory authority providing that the Attorney General “shall establish such regulations, ... review such administrative determinations in immigration proceedings, delegate such authority, and perform such other acts as the Attorney General determines to be necessary for carrying out this section.” 8 U.S.C. § 1103(g)(2). On March 30, 1998, Tamenut filed an application for asylum, withholding of removal, and relief under the Convention Against Torture. On October 22, 1999, an IJ denied the application. On March 28, 2003, the BIA affirmed without opinion. Tamenut filed a petition for review, which a panel of this court denied. Tamenut v. Ashcroft, 361 F.3d 1060 (8th Cir.2004) (per curiam). The BIA received Tamenut’s first motion to reopen on June 7, 2004, and denied it as untimely" }, { "docid": "23273767", "title": "", "text": "PER CURIAM. Zhao Quan Chen, a native and citizen of China, seeks review of a March 5, 2004 order of the Board of Immigration Appeals (“BIA”)-denying his motion to reconsider the BIA’s January 6, 2004 denial of the motion to reopen his immigration proceedings. This Court earlier denied Chen’s petition for review from the BIA’s November 9, 1999 decision affirming the IJ’s denial of a motion to reopen proceedings in which a deportation order was issued against Chen in absentia after Chen failed to appear at his hearing. See Zhao Quan Chen v. INS, 85 Fed.Appx. 223 (2d Cir.2003). On October 9, 2003, soon before this Court issued its decision, Chen filed a motion to reopen with the BIA, on the premise that, after the BIA’s 1999 decision, the INS approved an 1-140 petition filed by Chen’s employer on his behalf. The BIA denied Chen’s motion to reopen as untimely because it was filed more than 90 days after the issuance of the BIA’s final decision in 1999. See 8 C.F.R. § 1003.2(c)(2). Chen argued in his motion to reconsider—and argues again here—in the alternative (1) that his pending petition for review before this Court rendered the BIA’s decision non-final, and therefore the 90-day period had not yet begun to run; (2) that his pending petition for review before this Court equitably tolled the 90-day period; or (3) that the BIA should have granted the motion on humanitarian grounds notwithstanding its untimeliness. The BIA’s denial of a motion to reopen or reconsider is reviewed for abuse of discretion. See Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir.2006). The BIA abuses its discretion if it acts arbitrarily or capriciously, that is, when it provides no rational explanation, departs from established policies without explanation, or justifies its decision with only conclusory statements. See Kaur v. BIA, 413 F.3d 232, 234 (2d Cir.2005) (per curiam). Here the BIA acted well within its discretion. With some exceptions not relevant here, a motion to reopen “shall be filed within 90 days of the date of entry of a final administrative order of" }, { "docid": "19721984", "title": "", "text": "Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006) (per curiam). Petitioner’s motion to reopen was untimely in this regard, as it was filed approximately five years after the removal order became final. The INA also enumerates statutory exceptions that allow this ninety-day time limit to be excused or extended. For example, an otherwise-untimely motion to reopen may be permitted if the alien seeks asylum based on “changed country conditions arising in the country of nationality or the country to which removal has been ordered.” 8 U.S.C. § 1229a(c)(7)(C)(ii). We have also held that the ninety-day deadline for filing a motion to reopen is subject to equitable tolling under appropriate circumstances. See Iavorski, 232 F.3d at 134 (holding that the limitations period for untimely motions to reopen can be equitably tolled to accommodate claims of ineffective assistance of counsel). However, petitioner’s motion to reopen did not rely on any of the INA’s statutory exceptions to the ninety-day time limit, and he did not argue that he is entitled to equitable tolling. Instead, petitioner asked the BIA to invoke its sua sponte authority to reopen his removal proceedings. The wellspring of this authority resides, as it always has, in a regulation promulgated by the Attorney General: “The Board may at any time reopen or reconsider on its own motion any case in which it has rendered a decision. ... The decision to grant or deny a motion to reopen or reconsider is within the discretion of the Board, subject to the restrictions of this section.” 8 C.F.R. § 1003.2(a) (emphases added). However, after the Board realized that petitioner had been removed, it took the view that it was divested of jurisdiction to consider his motion based on the departure bar, which states that “[a]ny departure from the United States, including the ... removal of a person who is the subject of ... removal proceedings, occurring after the filing of a motion to reopen or a motion to reconsider, shall constitute a withdrawal of such motion.” 8 C.F.R. § 1003.2(d). The basis for the BIA’s interpretation of the departure bar as a" }, { "docid": "22696725", "title": "", "text": "744. Here, the IJ granted Rivera 90 days to voluntarily depart, rendering A-M- inapplicable. The BIA properly followed the Chouliaris policy by reducing the voluntary departure period to 30 days. Rivera has already had ample time to depart voluntarily. From the June 18, 2004 order of the IJ until she appealed to the BIA on July 19, 2004, she had time to depart. From the December 6, 2005 BIA decision until her petition for review filed with this court on January 4, 2006, she had time to depart. See Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1172-74 (9th Cir.2003) (holding that the voluntary departure period begins when an IJ or the BIA enters an order granting voluntary departure). Rivera moved for a stay of deportation and voluntary departure when she petitioned for review of the BIA decision with the Clerk of the Court of Appeals for the Ninth Circuit. After the respondent filed a notice of nonopposition, the Deputy Clerk filed an order pursuant to Ninth Circuit General Order 6.4(c), continuing the temporary stay until “issuance of the mandate, or further order of the court.” Rivera could have voluntarily departed at any time after the BIA’s decision, including during the pendency of the appellate proceedings, without prejudicing her appeal. See Mendez-Alcaraz v. Gonzales, 464 F.3d 842, 844 (9th Cir.2006) (noting that departure from the United States does not terminate jurisdiction). She will have yet another period for voluntary departure once we issue our mandate. The ability to delay finality over an issue such as voluntary departure illustrates an institutional failing in these asylum cases. By petitioning the Ninth Circuit for review, an undocumented alien greatly extends an illegitimate stay in the United States of America. Even in cases where the court has denied a petition on the merits, questions of voluntary departure lead to more delay. See, e.g., Padilla-Padilla, 463 F.3d at 982 (denying petitioner’s claim on the merits, but remanding for determination whether reduction of voluntary departure period was appropriate). It is clear that the mere filing of a petition for review no longer automatically stays the removal of an" }, { "docid": "19352431", "title": "", "text": "ORDER PER CURIAM: Petitioner Israel Vianzon Magtanong, a native and citizen of the Philippines, seeks review of the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen or reconsider removal proceedings. We consider whether Magtanong’s petition for review may be deemed timely filed. A petition for review “must be filed not later than 30 days after the date of the final order of removal.” 8 U.S.C. § 1252(b)(1). Magtanong’s attorney used the carrier DHL to send the petition for review by overnight delivery 29 days after the final order of removal, but the petition did not arrive and was not filed in this court until 31 days after the final order of removal. The provision establishing the 30-day filing period is mandatory and jurisdictional, see Stone v. INS, 514 U.S. 386, 405, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995), because it is imposed by statute. See 8 U.S.C. § 1252(b)(1); cf. United States v. Sadler, 480 F.3d 932, 936-37 (9th Cir.2007). A mandatory and jurisdictional rule cannot be forfeited or waived, see Sadler, 480 F.3d at 933-34, and courts lack the authority to create equitable exceptions to such a rule. See Bowles v. Russel — U.S. —, 127 S.Ct. 2360, 2366-67, 168 L.Ed.2d 96 (2007). Magtanong has not shown that he filed his petition for review within the statutory 30-day filing period, see 8 U.S.C. § 1252(b)(1), and he has failed to present tangible evidence that the petition arrived before or on the thirtieth day. Cf. Sheviakov v. INS, 237 F.3d 1144, 1148 (9th Cir.2001). Accordingly, we dismiss this petition for review for want of jurisdiction and deny all pending motions as moot. The temporary stay of removal confirmed by Ninth Circuit General Order 6.4(c) shall continue in effect until issuance of the mandate. DISMISSED." }, { "docid": "20383076", "title": "", "text": "BALDOCK, Circuit Judge. Petitioner Eddie Mendiola petitions this Court to review the Board of Immigration Appeals’ (BIA or Board) denial of his second motion to reopen his removal proceedings. As a threshold matter, Petitioner argues the BIA erred in holding that 8 C.F.R. § 1003.2(d) proscribed its jurisdiction to entertain his motion to reopen. Section 1003.2(d) provides: A motion to reopen or a motion to reconsider [before the BIA] shall not be made by or on behalf of a person who is the subject of exclusion, deportation, or removal proceedings subsequent to his or her departure from the United States. Any departure from the United States, including the deportation or removal of a person who is the subject of exclusion, deportation, or removal proceedings, occurring after the filing of a motion to reopen or a motion to reconsider, shall constitute a withdrawal of such motion. See also 8 C.F.R. § 1003.23(b)(1) (containing an identical post-departure bar to motions to reopen or reconsider before an immigration judge). Petitioner further contends that, in light of his former attorney’s alleged ineffectiveness, the BIA erred in declining to equitably toll the time and numerical limits on his motion to reopen his removal proceedings found in 8 C.F.R. § 1003.2(c)(2). Section 1003.2(c)(2) provides: “[A]n alien may file only one motion to reopen removal proceedings (whether before the Board or the Immigration Judge) and that motion must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened.” We have jurisdiction over the petition under 8 U.S.C. § 1252(a)(2)(D), which preserves our power to decide “constitutional claims or questions of law raised upon a petition for review.” The questions Petitioner raises in this petition are purely legal in nature and, therefore, fit comfortably within the confines of § 1252(a)(2)(D). Our review is de novo. Lorenzo v. Mukasey, 508 F.3d 1278, 1282 (10th Cir.2007). We conclude that we are bound by our recent precedent in Rosillo-Puga v. Holder, 580 F.3d 1147 (10th Cir.2009), and we therefore deny the petition for review. I. Petitioner" }, { "docid": "828850", "title": "", "text": "OPINION GARTH, Circuit Judge: The appeals which we review here involve two fundamental issues: (1) do we have jurisdiction to review the Board of Immigration Appeals’ (“BIA”) denial of a motion to reissue its decision; and (2) what is the effect of an alien’s claim that the BIA’s decision, which was purportedly mailed to the last address of record, was never received by the alien. We have yet to decide these issues, which affect the ability of an alien to seek legal redress before being deported from this country. We will grant the petitions and remand both cases to the BIA with instructions consistent with our ruling today. I. A. Petitioner Avni Jahjaga (“Jahjaga”) is a citizen of Kosovo who claimed political persecution. After an Immigration Judge (“IJ”) denied his applications for asylum, withholding of removal, and relief under the Convention Against Torture, he appealed to the BIA. On February 22, 2005, the BIA affirmed the IJ’s decision. Jahja-ga then filed a motion to reopen his proceeding, which the BIA denied on August 17, 2005. Jahjaga contends that neither he, nor his attorney, received the BIA’s August 17 decision until it was mailed to his counsel on November 1, 2005. Jahjaga accordingly argues that his motion to reconsider, which was filed with the BIA on November 30, is timely because it was filed within 30 days of the date of the order’s mailing on November 1. See 8 C.F.R. § 1003.2(b)(2). As a result of actions taken by Jahjaga’s counsel in writing to the BIA in September and responding to the BIA’s October order denying reissuance, we assume without deciding that the motion was timely. On May 1, 2006, the BIA denied Jahja-ga’s motion to reconsider. The BIA held that the motion was untimely as Jahjaga failed to file it within thirty days of August 17, 2005. Jahjaga then petitioned this Court for review. B. Petitioner Goce Gjeroski (“Gjeroski”) is a native of Macedonia and essentially claimed that his coerced military service by Macedonia qualified him for relief. An IJ denied his applications for asylum, withholding of removal, and protection" } ]

[ { "docid": "23541757", "title": "", "text": "however, the bankrupt cy court is not free to discharge the debt. Section 523(a)(5) states clearly that such debts are not to be discharged. Consequently, upon finding the debt to be maintenance, support, or alimony in fact, the bankruptcy court below should have excepted that portion of the debt from discharge. Because it did not, its decision in this respect must be reversed. In accordance with the foregoing discussion, the decision of the bankruptcy court is affirmed in part and reversed in part. . Section 523(a)(5) provides in its entirety: A discharge under section 727, 1141, or 1328(b) of this title does not discharge an individual debtor from any debt — .... (5) to a spouse, former spouse, or child of the debtor for alimony to, maintenance for, or support of spouse or child, in connection with a separation agreement, divorce decree, or property settlement agreement, but not to the extent that— (A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise; or (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support; ... . Plaintiff argues that the “clearly erroneous” standard of review is inappropriate in this case. Relying on In re Maitlen, 658 F.2d 466 (7th Cir. 1981), plaintiff argues that the determination of whether or not payments labeled as support, maintenance, or alimony are, in fact, support, maintenance, or alimony, and, therefore, within section 523(a)(5), is a question of law or a mixed question of law and fact. The Maitlen court, at least in part, relied upon the lower court’s application of an Indiana statute in deciding that the question confronting it was a question of law or a mixed question of fact and law and that accordingly the clearly erroneous standard did not apply. The instant case does not involve the application of a statute by the bankruptcy court. Instead, the court below merely complied with the statutory procedural requirement, section 523(a)(5)(B), that it examine the actual nature of the debt. If the court below had" } ]

[ { "docid": "18766110", "title": "", "text": "any event, on its face it clearly seems to allow a state court on remand to “proceed” to decide a case under advisement which was improvidently removed to Bankruptcy Court. Thus, under either of these grounds it is clear that the terms of the amended dissolution decree, to the extent that they affect Debtor or the property of his bankruptcy estate, are not void for violation of the automatic stay. B. Dischargeability Issues Debtor’s second — and more substantial — challenge to the validity of the dissolution decree is premised upon the following language of 11 U.S.C. § 523(a)(5): (a) A discharge under section 727 ... of this title does not discharge an individual debtor from any debt— (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree, or property settlement agreement, but not to the extent that— (A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise (other than debts assigned pursuant to section 402(A)(26) of the Social Security Act); or (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support; ... This provision basically makes nondis-chargeable in bankruptcy any debt arising from a family support obligation imposed under state law, where embodied in an agreement or divorce decree. In re Rodriguez, 22 B.R. 309, 310 (Bankr.W.D.Wis.1982). Debts created in divorce agreements or decrees which are in the nature of a property division and not in the nature of a family support obligation are dischargea-ble in bankruptcy. In re Kagan, 42 B.R. 563 (Bankr.N.D.Ill.1984); In re Pody, 42 B.R. 570 (Bankr.N.D.Ala.1984). Whether a particular debt created in a state court dissolution decree is a family support obligation or a property division is a question of federal law. H.R.REP. No. 595, 95th Cong., 1st Sess. 364 (1977); S.REP. No. 989, 95th Cong., 2d Sess. 79 (1978), U.S. Code Cong & Admin.News 1978, p. 5787; In Re Williams, 703 F.2d" }, { "docid": "10530656", "title": "", "text": "she was unable to pay on her Sears account balance of $4,744 because she has been paying her mortgage payments instead. Her expenses (excluding the mortgage payment on the House) include utilities of at least $300 per month (much more in the summer when electricity alone is approximately $300 per month) and car insurance of $600 per year. The court finds her expenses are reasonable and necessary as well. DISCUSSION Whether the Debtor’s Obligations Are Non-Dischargeable as Support, Maintenance or Alimony Section 523(a)(5) provides: 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— $$$$$$ (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that— (A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise (other than debts assigned pursuant to section 408(a)(3) of the Social Security Act, or any such debt which has been assigned to the Federal Government or to a State or any political subdivision of such State); or (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support. ... The general rule is that “[t]he burden is on the person who asserts nondischargeability of a debt to prove its exemption from discharge.” Benich v. Benich (In re Benich), 811 F.2d 943, 945 (5th Cir.1987) (footnotes omitted). Thus the Plaintiff in this case must show by a preponderance of the evidence that the Debtor’s obligation is in the nature of alimony, maintenance and/or support so as to make the debt non-dis-chargeable under § 523(a)(5). Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (holding that the standard of proof for the dischargeability exceptions in 11 U.S.C. § 523(a)" }, { "docid": "4535285", "title": "", "text": "Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987). A motion for summary judgment must be denied when there is a genuine issue as to any material fact, and it must be granted when there is no such issue and the movant is entitled to judgment as a matter of substantive law. Anderson, 477 U.S. at 247-51, 106 S.Ct. at 2509-12; Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir.1991); Kenston Mgt. Co. v. Lisa Realty Co. (In re Kenston Mgt. Co.), 137 B.R. 100, 108 (Bankr.E.D.N.Y.1992). The Dischargeability of the Obligations Section 523(a)(5) of the Code excepts from discharge any debt— to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record ... but not to the extent that— (A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise ...; or (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support. 11 U.S.C. § 523(a)(5). “The spouse seeking a determination that an obligation is nondis-chargeable on the grounds that it was actually in the nature of alimony maintenance or support, has the burden of proof.” Mackey v. Kaufman (In re Kaufman), 115 B.R. 435, 439 (Bankr.E.D.N.Y.1990). In the instant matter, Plaintiffs’ motion for partial summary judgment necessarily rests on the nature of the legal fees awarded. Because if the obligation to pay the legal fees is in the nature of alimony, maintenance, or support, it is nondischargeable. However, to the extent the obligation is characterized as a property settlement it is dischargeable. See Friedman v. Silberfein (In re Silberfein), 138 B.R. 778, 780 (Bankr.S.D.N.Y.1992); Leslie v. Hart (In re Hart), 130 B.R. 817, 825 (Bankr.N.D.Ind.1991); Brody v. Brody (In re Brody), 120 B.R. 696, 699 (Bankr.E.D.N.Y.1990); Zaera v. Raff (In re Raff), 93 B.R. 41, 44 (Bankr.S.D.N.Y.1988)." }, { "docid": "23681850", "title": "", "text": "MEMORANDUM PAUL E. JENNINGS, Bankruptcy Judge. This matter is before the Court for a determination of the dischargeability of monies owed by William Nelson to Ella Nelson Benz. It is insisted by the debtor that the debt is nondischargeable as an award of alimony and child support pursuant to 11 U.S.C. § 523(a)(5). That section as amended provides as follows:' (a) A discharge under section 727, 1141, or 1328(b) of this title does not discharge an individual debtor from any debt— (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse, or child, in connection with a separation agreement, divorce decree, or property settlement agreement, but not to the extent that— (A) such debt is assigned to another entity, voluntarily, by operation of laws, or otherwise (other than debts assigned pursuant to § 402(a)(26) of the Social Security Act); or (B) such debt includes a liability designated as alimony, maintenance or support, unless such liability is actually in the nature of alimony, maintenance or support. The following shall constitute findings of fact and conclusions of law pursuant to Rule 752, F.R.B.P. On September 22, 1966, a final decree of divorce was entered in the Probate Court of Davidson County, Tennessee. The decree recited that the parties were married on June 30, 1944, and have four children born April 19, 1945, May 4, 1949, November 23, 1953, and March 9,1962. At the time of the divorce the parties had been married some twenty-two years and the children were ages 21,17, 12 and 4. The divorce decree incorporated a “support agreement” by which the defendant agreed to deed his interest in the family home to the plaintiff, continue making mortgage payments on the home and pay the annual taxes and insurance premiums on the home. The defendant further agreed to pay the plaintiff “for the support of herself and the four children of the parties the sum of $500.00 per month.” Provision was made for modification of the decree by mutual consent as the financial resources of the husband would permit." }, { "docid": "23681857", "title": "", "text": "Hylek v. Hylek, 148 F.2d 300, 302 (7th Cir. 1945) affirming 53 F.Supp. 657 (D.C.Ind.1944); Spittergerber v. Church, 1 B.C.D. 993 (B.Ct.W.D.Wis.1975). The tax-oriented language of the 1976 Consent Decree did not change the nature of the decreed obligations. See Warner v. Warner, 5 B.R. 434, 6 B.C.D. 788, 792; CCH Bankr.L.Rptr. ¶ 67,631 (B.Ct.Utah 1980). In determining whether certain obligations of payments by a spouse required pursuant to a Final Divorce Decree, Support Agreement, etc. represent payments of alimony, maintenance or support as opposed to property settlement, bankruptcy and other federal courts have usually considered the following factors: 1. Whether the obligations of payment terminate upon the death of either spouse or upon the remarriage of the spouse benefited by the payments; 2. Whether the obligation terminates when the dependent children reach majority age or are otherwise emancipated; 3. Whether the payments are to be made directly to the spouse; 4. The relative earnings of the parties; 5. Evidence that the spouse relinquished rights in property in return for the payment of the obligations; 6. The length of the parties’ marriage and the number of dependent children; 7. The document itself and any inferences which can be drawn from placement of specific provisions within the document; 8. Whether the debt was incurred for the immediate living expenses of the spouse; 9. Whether the payments were intended for the economic safety of the dependents); 10. Whether the obligation is enforceable by contempt; 11. Whether the payments are payable in installments over a substantial period of time. After consideration of all the evidence, it is clear that the judgment of $6,657.40 is merely a division of property and, thus, dischargeable in bankruptcy. The payments of the notes, house insurance and taxes on the house previously deeded to the former wife were conditioned on the former wife keeping the house as a home for herself and the children of the parties. Rather than indicate that the payments terminated upon the death or remarriage of the former wife or the emancipation of the children, the language indicates that the payments would terminate if" }, { "docid": "1091753", "title": "", "text": "alone. Nondischargeable Alimony and Support Section 523(a)(5) reads as follows: (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— (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that— (A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise (other than debts assigned pursuant to section 402(a)(26) of the Social Security Act, or any such debt which has been assigned to the Federal Government or to a State or any political subdivision of such State); or (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support; 11 U.S.C. § 523(a)(5). Under this section, an obligation is excepted from discharge only if it is actually in the nature of alimony, maintenance, or support, whether or not it is labelled as such in the divorce decree, and (with exceptions not applicable here) only if the obligation has not been assigned. This debt has not been assigned to another entity. The fact that it is payable to an entity other than the Debtor’s former spouse does not mean that the debt has been assigned or that the obligation to pay it is not a debt to the former spouse within the meaning of § 523(a)(5). The Debtor’s obligation to honor a debt owed by his ex-wife to a third party is just as much a debt to the ex-wife as it is to the third party. In re Spong, 661 F.2d 6, 10-11 (2d Cir.1981); In re Calhoun, 715 F.2d 1103, 1106-1107 (6th Cir.1983) (“[Payments in the nature of support need not be made directly to the spouse or dependant to be nondischargeable.” Id. at 1107). The" }, { "docid": "23034619", "title": "", "text": "nature of alimony, maintenance, or support. For the reasons stated below, the Court finds for the plaintiff. Discussion Section 523(a)(5) provides in pertinent part: (a) A discharge under section 727,1141, or 1328(b) of this title does not discharge an individual debtor from any debt— (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree, or property settlement agreement, but not to the extent that— (A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise; or (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support. 11 U.S.C. § 523(a)(5). The legislative history of this section makes it clear that a debtor’s assumption of full responsibility for the joint debts of himself and his spouse is nondischargeable to the extent that the agreement is in the nature of alimony, support or maintenance. 124 Cong.Rec. Hll,096 (daily ed. Sept. 28, 1978) (remarks of Rep. Edwards); id. at S17,412 (daily ed. Oct. 6, 1978) (remarks of Sen. DeConcini). Accordingly, the appropriate inquiry is into the underlying purpose of the assumption: to wit, were the debts assumed in lieu of the payment of alimony or support or only as a means of dividing property. See, e.g., Melichar v. Ost, 661 F.2d 300 (4th Cir. 1981); In re Snyder, 7 B.R. 147 (W.D.Va.1980); In re Golden, 411 F.Supp. 1076 (S.D.N.Y.1976); In re Sturgell, 7 B.R. 59 (Bkrtcy. S.D. Ohio 1980); In re Williams, 3 B.R. 401 (Bkrtcy.N.D.Ga.1980). This inquiry will often take the bankruptcy court beyond the face of any separation agreement or state court judgment, see In re Santangelo, No. 880-06463, slip op. at 4-6 (B.C.E.D.N.Y. July 21, 1981); accord, Poolman v. Poolman, 289 F.2d 332, 335 (8th Cir. 1961) citing Wetmore v. Markoe, 196 U.S. 68, 25 S.Ct. 172, 49 L.Ed. 390 (1904); In re Carrigg, 14 B.R. 658, 661 (Bkrtey.D.S.C.1981); In re Warner, 5 B.R. 434, 440-41 (Bkrtcy.D.Utah 1980); In re" }, { "docid": "16641472", "title": "", "text": "forth specific facts showing a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A court considering a motion for summary judgment does not resolve factual disputes but must view all facts and inferences therefrom in the light most favorable to the non-moving party. Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1362 n. 1 (3d Cir.1996). There is no genuine triable issue unless there is sufficient evidence to permit a finding in favor of the non-moving party. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. In the instant case, both parties agree that there are no disputed questions of fact, only legal issues regarding the application of section 523(a)(5). As such, the court will grant summary judgment to the party entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552-53. B. Applicable Law The parties agree that the only Code section in question is section 523(a)(5). This section excepts from discharge any debt: to a spouse, former spouse or child of the debtor, for alimony to, maintenance for, or support of such spouse or child in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that— (A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise ...; or (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support. 11 U.S.C.A. § 523(a)(5). The plain language of this section sets forth a three-part test for determining debts to be nondischargeable. The debt must be 1) to “the child of the debtor”; 2) incurred for the “support” of the child; and 3) incurred “in connection with a separation agreement, divorce decree or other order of a court of record ... or property settlement agreement.” 11 U.S.C.A. § 523(a)(5). See Spear v. Constantine" }, { "docid": "23698455", "title": "", "text": "allowance of attorney’s fees and suit money until the final hearing of the case and may then make such order with reference thereto as may seem just and equitable, regardless of the disposition of the case. . In all actions for divorce in which the court grants to the wife or husband, as the case may be, attorney’s fees in the prosecution or defense of the action, as the case may be, such fees may, in the discretion of the court, be made payable in whole or in part, to the attorney entitled thereto, and judgment may be entered and execution levied accordingly. 3. On March 7, 1980, DONALD PELI-KANT filed his voluntary petition in bankruptcy herein. 4. To date, DONALD PELIKANT has paid to HAROLD RICHTER on account of the award of attorney’s fees embodied in the aforesaid Decree of Divorce the sum of $199.54, leaving a balance due of $300.46. The Court Concludes and Further Finds: 1. § 523(a) of the Bankruptcy Code provides in pertinent part as follows: “(a) A discharge under section 727, 1141, or 1328(b) of this title does not discharge an individual debtor from any debt— (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree, or property settlement agreement, but not to the extent that— (A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise; or (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support; 2. The Seventh Circuit Court of Appeals, interpreting the predecessor to the above quoted section in In re Cornish, 529 F.2d 1363 (7th Cir. 1976), held that an award of attorney’s fees under Ill.Rev.Stat. ch. 40, § 16 was nondischargeable as a liability for “alimony due or to become due, or for maintenance or support of wife or child.” Other jurisdictions have reached a similar conclusion. See In re Jones, 518 F.2d 678 (9th Cir. 1975);" }, { "docid": "18582954", "title": "", "text": "any time that there is a material change in the debt- or’s economic circumstances.” The district court reversed the bankruptcy court with respect to the alimony arrear-ages and with respect to the $300 monthly amount for post-majority payments. The district court otherwise affirmed the bankruptcy court, with the net result that debt- or’s obligations were all held not to be dischargeable in bankruptcy. Debtor appealed to this court. Debtor’s principal contentions on appeal are that: (1) the obligation to pay post-majority child support and educational expenses is dischargeable because the relevant state law does not require a parent to support his child past the age of eighteen; and (2) the alimony arrearages are dis-chargeable because the parties’ separation agreement required debtor to pay more than defendant actually needed for support, and because defendant did not need the arrearages at the time debtor filed his petition in bankruptcy. II. DISCHARGEABILITY OF DOMESTIC OBLIGATIONS A debtor may obtain a general discharge under Chapter VII of the Bankruptcy Code from “all debts that arose before the date of the order for relief.” 11 U.S.C.A. § 727(b) (West 1979). The Code makes exceptions for certain obligations, however, among which are alimony and support payments. The language in the Code that provides this treatment states that a discharge under section 727 does not discharge a debtor from any debt: (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree, or property settlement agreement, but not to the extent that— (A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise (other than debts assigned pursuant to section 402(a)(26) of the Social Security Act); or (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support; 11 U.S.C.A. § 523(a)(5) (West 1979 & Supp. 1984). The effect of the statute, then, is that a given domestic obligation is not dis-chargeable if it is “actually in the nature" }, { "docid": "23698456", "title": "", "text": "section 727, 1141, or 1328(b) of this title does not discharge an individual debtor from any debt— (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree, or property settlement agreement, but not to the extent that— (A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise; or (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support; 2. The Seventh Circuit Court of Appeals, interpreting the predecessor to the above quoted section in In re Cornish, 529 F.2d 1363 (7th Cir. 1976), held that an award of attorney’s fees under Ill.Rev.Stat. ch. 40, § 16 was nondischargeable as a liability for “alimony due or to become due, or for maintenance or support of wife or child.” Other jurisdictions have reached a similar conclusion. See In re Jones, 518 F.2d 678 (9th Cir. 1975); In re Nunnally, 506 F.2d 1024 (5th Cir. 1975); Damon v. Damon, 283 F.2d 571 (1st Cir. 1960). The Seventh Circuit held that the fees constituted a nondischargeable debt whether payable to the wife or to her attorney. In re Cornish, supra at 1365. Debtor, DONALD PELIKANT, contends that Cornish is no longer good law, since it was decided on the basis of Illinois law and the legislative history of § 523(a)(5) makes it clear that bankruptcy law, not state law, will determine what constitutes alimony, maintenance, or support. Debtor’s contention is without merit. While the legislative history indicates that the determination whether an award constitutes alimony shall be made with reference to a federal standard, nothing in the legislative history suggests that state law shall play no part in making that determination. H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 364 (1977), U.S.Code Cong. & Admin. News 1978, pp. 5787, 6320 states as follows: “. . What constitutes alimony, maintenance, or support, will be determined under the bankruptcy laws, not State law. Thus, cases such" }, { "docid": "4676860", "title": "", "text": "presently judgments which affect the real estate which was the marital abode. Although plaintiff is a licensed nurse, she was not working at the time of the divorce nor at any time subsequent to it. In the proceeding presently before this Court, the debtor-defendant denies that these debts are nondischargeable under 11 U.S.C. § 523(a)(5) on the grounds that they constitute a property settlement not alimony, maintenance or support and that as the debts were to be paid directly to the creditors, the payments were for the benefit of creditors rather than for the benefit of a spouse or dependents. Section 523(a)(5) states: (a) A discharge under section 727, 1141, or 1328(b) of this title does not discharge an individual debtor from any debt— (5) to a spouse, former spouse, or child of the debtor for alimony to, maintenance for, or support of both spouse or child, in connection with a separation agreement, divorce decree, or property settlement agreement, but not to the extent that— (A) such debt is assigned to another entity, voluntarily, by operation of law; or (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support. The legislative history indicates: Section 523(a)(5) is a compromise between the House bill and the Senate amendment. The provision excepts from discharge a debt owed to a spouse, former spouse or a child of the debtor, in connection with a separation agreement, divorce decree, or property settlement agreement, for alimony to, maintenance for, or support of such spouse or child but not to the extent that the debt is assigned to another entity. If the debtor has assumed an obligation of the debtor’s spouse to a third party in connection with a separation agreement, property settlement agreement, or divorce proceeding, such debt is dischargeable to the extent that payment of the debt by the debtor is not actually in the nature of alimony, maintenance or support of debtor’s spouse, former spouse, or child. 124 Cong.Rec.H 11,095-6 (Sept. 28, 1978); S 17,412-3 (Oct. 6, 1978). The apparent" }, { "docid": "1137058", "title": "", "text": "797 at 799, supra. 11 U.S.C. § 523(a)(5) provides as follows: (a) a Discharge under section 727, 1141 or 1328(b) of this title does not discharge an individual debtor from any debt — — ****** (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree, or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that— (A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise (other than debts assigned pursuant to section 402(a)(26) of the Social Security Act, or any such debt which has been assigned to the Federal Government or to a State or any political subdivision of such State); or (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support; .... (emphasis added) The legislative history of this particular section in the form of Legislative Statements indicates as follows: Section 523(a)(5) is a compromise between the House bill and the Senate amendment. The provision excepts from discharge a debt owed to a spouse, former spouse or child of the debtor, in connection with a separation agreement, divorce decree, or property settlement agreement, for alimony to, maintenance for, or support of such spouse or child but not to the extent that the debt is assigned to another entity. If the debtor has assumed an obligation of the debtor’s spouse to a third party in connection with a separation agreement, property settlement agreement, or divorce proceeding, such debt is dischargeable to the extent that payment of the debt by the debtor is not actually in the nature of alimony, maintenance, or support of debtor’s spouse, former spouse, or child. (124 Cong Rec HI1096 (daily ed. Sept. 28, 1978); S17412 (daily ed. Oct. 6, 1978)). Reprinted in Norton Bankruptcy Law and Practice, Bankruptcy Code § 523, Legislative History and" }, { "docid": "16761533", "title": "", "text": "settlement agreement, but not to the extent that ... (A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise (other than debts assigned pursuant to section 402(a)(26) of the Social Security Act, or any such debt which has been assigned to the Federal Government or to a State or any political subdivision of such State); or (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support; .... (emphasis added) The legislative history of this particular section in the form of Legislative Statements indicates as follows: Section 523(a)(5) is a compromise between the House bill and the Senate amendment. The provision excepts from discharge a debt owed to a spouse, former spouse or child of the debtor,, in connection with a separation agreement, divorce decree, or property settlement agreement, for alimony to, maintenance for, or support of such spouse or child but not to the extent that the debt is assigned to another entity. If the debtor has assumed an obligation of the debtor's spouse to a third party in connection with a separation agreement, property settlement agreement, or divorce proceeding, such debt is dischargeable to the extent that payment of the debt by the debtor is not actually in the nature of alimony, maintenance, or support of debtor’s spouse, former spouse, or child. (124 Cong Rec H11096 (daily ed. Sept. 28, 1978); S17412 (daily ed. Oct. 6, 1978)). Reprinted in Norton Bankruptcy Law and Practice, Bankruptcy Code § 523, Legislative History and Comment. The Notes of the Committee on the Judiciary, House Report No. 95-595 state as follows: Paragraph (5) excepts from discharge debts to a spouse, former spouse, or child of the debtor for alimony to, maintenance for, or support of, the spouse or child. This language, in combination with the repeal of section 456(b) of the Social Security Act (43 U.S.C. 656(b) [former section 656(b) of Title 42, The Public Health and Welfare] by section 327 of the bill, will apply to make nondischargeable only alimony, maintenance, or" }, { "docid": "16761532", "title": "", "text": "re Williams, 703 F.2d 1055 (8th Cir.1983); In re Calhoun, 715 F.2d 1103 (6th Cir.1983); In re Mencer, 50 B.R. 80 (Bankr.E.D.Ark.1985); In re Seidel, 48 B.R. 371 (Bankr.C.D.Ill.1984). See, Brown v. Felsen, supra. This court in Hill v. Hale, Slip op., Adversary Proceeding No. 89-6074 (In re Hill, Case No. 88-60075) (Bankr.N.D.Ind. June 5, 1989) analyzed the federal nature of the obligation to be determined under § 523(a)(5), rather than the characterization of the debt by the State Court pursuant to State Law. There the Court stated as follows: 11 U.S.C. § 523(a)(5) provides as follows: (a) a Discharge under section 727, 1141 or 1328(b) of this title does not discharge an individual debtor from any debt — — ****** (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree, or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that ... (A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise (other than debts assigned pursuant to section 402(a)(26) of the Social Security Act, or any such debt which has been assigned to the Federal Government or to a State or any political subdivision of such State); or (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support; .... (emphasis added) The legislative history of this particular section in the form of Legislative Statements indicates as follows: Section 523(a)(5) is a compromise between the House bill and the Senate amendment. The provision excepts from discharge a debt owed to a spouse, former spouse or child of the debtor,, in connection with a separation agreement, divorce decree, or property settlement agreement, for alimony to, maintenance for, or support of such spouse or child but not to the extent that the debt is assigned to another entity. If the" }, { "docid": "1096534", "title": "", "text": "MEMORANDUM OF OPINION JOHN F. RAY, Jr., Bankruptcy Judge. This matter came before the Court on plaintiff’s dischargeability complaint, answer of defendant, hearing and oral arguments of counsel. Plaintiff is the former wife of the debtor, and bases her dischargeability complaint on the judgment entry granting her divorce. Incorporated in the judgment entry is a separation agreement which requires debtor to pay a second mortgage on real estate, and requires him to reimburse plaintiff for attorney’s fees incurred in the divorce. Plaintiff contends that these debts are non- dischargeable under Section 523(a)(5) of the Bankruptcy Code. Section 523(a)(5) excepts from discharge any debt “(5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of both spouse or child, in connection with a separation agreement, divorce decree, or property settlement agreement, but not to the extent that— (A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise; or (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support;” According to the language of this section, alimony, support, and maintenance are only nondischargeable if payable directly to the supported party, and if designated alimony is actually in the nature of alimony, maintenance or support. In plaintiff’s separation agreement, provisions (5), (6) and (8) provide alimony for the spouse and support for debtor’s minor children. However, the husband’s obligation to pay the second mortgage appears in provision (7), entitled “DEBTS.” Thus from the separation agreement’s language, the second mortgage payments are not designated as alimony, and would be discharge-able in bankruptcy. To avoid this result, plaintiff contends that this Court should look behind the terms of the separation agreement to ascertain whether the debt is actually in the nature of alimony. Certainly Section 523(a)(5)(B) of the Code authorizes the Bankruptcy Court to examine debts designated as alimony, maintenance, or support to make sure that they are actually in the nature of alimony, maintenance, or support. However, section 523(a)(5)(B) does not authorize the examination of debts" }, { "docid": "16641473", "title": "", "text": "to a spouse, former spouse or child of the debtor, for alimony to, maintenance for, or support of such spouse or child in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that— (A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise ...; or (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support. 11 U.S.C.A. § 523(a)(5). The plain language of this section sets forth a three-part test for determining debts to be nondischargeable. The debt must be 1) to “the child of the debtor”; 2) incurred for the “support” of the child; and 3) incurred “in connection with a separation agreement, divorce decree or other order of a court of record ... or property settlement agreement.” 11 U.S.C.A. § 523(a)(5). See Spear v. Constantine (In re Constantine), 183 B.R. 335, 336 (Bankr.D.Mass.1995). C. Defendants’ Motion for Summary Judgment 1. Motion regarding Defendant Ana Graciela Uriarte It is clear that summary judgment should be granted in favor of defendant Ana Graciela Uriarte. Ana Graciela is not a party to the state court guardianship action. The court order requires defendant Ricardo Uriarte and certain maternal relatives of the children to share payment of the guardian ad litem fees and does not mention Ana Graciela Uriarte. Plaintiff has submitted no evidence that Ana Graciela owes any debt to the plaintiff. Therefore, summary judgment is granted in favor of defendant Ana Graciela Uriarte. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Fed.R.Bankr.P. 7056 (incorporating by reference Fed.R.Civ.P. 56). 2. Motion regarding Defendant Ricardo Uriarte • Section 523(a)(5) requires that a debt be owed to the “child of the debtor” to be excepted from discharge. 11 U.S.C.A. § 523(a)(5). Defendants state that the children are not “childfren] of the debtor” as required by the statute because" }, { "docid": "23681856", "title": "", "text": "1978, pp. 5787, 6319. See Monday v. Allen, supra; In re Knabe, 8 B.R. 53, 7 B.C.D. 185 (Bkrtcy., S.D.Ind.1980); In re Netherton, 2 B.R. 50 (Bkrtcy., M.D.Tenn.1979). Accordingly, it is apparent that this Court has the duty to inquire into the divorce decree and subsequent consent decree and determine whether the required payments by the debt- or contained therein are payments in the nature of alimony, maintenance, or support or whether a property settlement was intended. The fact that the debtor’s spouse has reduced the obligations of the debtor pursuant to the divorce decree to judgments against the debtor does not alter the character of the obligations with regard to whether they are dischargeable in bankruptcy. Avery v. Avery, supra; Golden v. Golden, 411 F.Supp. 1076 (S.D.N.Y.1976, aff'd per curiam 535 F.2d 213 (2nd Cir. 1976); Collier on Bankruptcy ¶ 17.19 (14th ed. 1980). The nature of the obligations upon which the judgment rests also are not altered by the fact that the judgment was rendered after some of the children had reached majority. Hylek v. Hylek, 148 F.2d 300, 302 (7th Cir. 1945) affirming 53 F.Supp. 657 (D.C.Ind.1944); Spittergerber v. Church, 1 B.C.D. 993 (B.Ct.W.D.Wis.1975). The tax-oriented language of the 1976 Consent Decree did not change the nature of the decreed obligations. See Warner v. Warner, 5 B.R. 434, 6 B.C.D. 788, 792; CCH Bankr.L.Rptr. ¶ 67,631 (B.Ct.Utah 1980). In determining whether certain obligations of payments by a spouse required pursuant to a Final Divorce Decree, Support Agreement, etc. represent payments of alimony, maintenance or support as opposed to property settlement, bankruptcy and other federal courts have usually considered the following factors: 1. Whether the obligations of payment terminate upon the death of either spouse or upon the remarriage of the spouse benefited by the payments; 2. Whether the obligation terminates when the dependent children reach majority age or are otherwise emancipated; 3. Whether the payments are to be made directly to the spouse; 4. The relative earnings of the parties; 5. Evidence that the spouse relinquished rights in property in return for the payment of the obligations;" }, { "docid": "23503816", "title": "", "text": "State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that— (A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise (other than debts assigned pursuant to section 408(a)(3) of the Social Security Act, or any such debt which has been assigned to the Federal Government or to a State or any political subdivision of such State); or (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance or support. 11 U.S.C. § 523(a)(5) (1994). Thus, under § 523(a)(5), a debt that is “actually in the nature of alimony, maintenance or support of a spouse, former spouse, or child of the debt- or” is nondischargeable in bankruptcy. In 1994, Congress expanded the exception to discharge for marital obligations by adding § 523(a)(15) to the Bankruptcy Code. Section 523(a)(15) renders nondischargeable any debt: not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, a determination made in accordance with State or territorial law by a governmental unit unless— (A) the debtor does not have the ability to pay such debt from income or property of the debtor not reasonably necessary to be expended for the maintenance or support of the debtor or a dependant of the debtor and, if the debt- or is engaged in business, for the payment of expenditures necessary for the continuation, preservation, and operation of sueh business; or (B) discharging such debt would result in a benefit to the debtor that outweighs the detrimental consequences to a spouse, former spouse, or child of the debtor. Id. § 523(a)(15). Section 523(a)(15) excepts irom discharge those debts arising out of marital dissolution proceedings that do not constitute nondischargeable alimony, maintenance or support under § 523(a)(5); i.e. property settlement awards. The legislative history of this provision indicates that it was added to the Bankruptcy Code to" }, { "docid": "13155099", "title": "", "text": "(Cooley), and Moncure, the Commissioner in Chancery, brought separate adversary proceedings asking this Court to determine these debts to be nondischargeable in bankruptcy. Due to the similar nature of these claims, these cases were heard at the same time and are the subject of this opinion. THE COMMISSIONER’S FEES The defendants in the instant case attempt to discharge their obligation to pay commissioner’s fees to Moncure. Moncure allegés alternative grounds for determining the debt of commissioner’s fees to be non-dischargeable. First, he alleges that the debt is nondischargeable under § 523(a)(5) as a debt in the nature of alimony, support, and maintenance. Second, he alleges that the debt is nondischargeable under § 523(a)(2) because the debt was incident to a fraudulent conveyance action. 11 U.S.C. § 523(a)(5) provides in pertinent part “A discharge under § 727, 1141, or 1328(b) of this title does not discharge an individual debtor from any debt ... (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of both spouse or child, in connection with a separation agreement, divorce decree, or property settlement agreement, but not to the extent that— (A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise; or (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support .... ” What constitutes “alimony, maintenance, or support” is a question of federal bankruptcy law and not a question of state law, although the bankruptcy court may examine state law in determining what is alimony. See, e.g. In re Spong, 661 F.2d 6 (2nd Cir. 1981); In re DuPont, 19 B.R. 605 (Bkrtcy.E. D.N.Y.1982). Courts have formulated a two-part test in determining whether a debt is nondischargeable under § 523(a)(5). The two parts of the test include: 1) that the debt is payable directly to a former spouse or child of the- debtor and has not been assigned to another entity voluntarily, by operation of law, or otherwise; and 2) that the debt is actually in" } ]

[ { "docid": "22586075", "title": "", "text": "Assessment of Functioning was only 40, on a scale of 1-100. A score of 40 indicates “major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood.” DSM at 32. On May 22, 2003, after obtaining two extensions of time, defendant moved to oppose Ms. Pollard’s motion to vacate, alter and amend the judgment. On July 10, 2003, the district court denied Ms. Pollard’s motion for reconsideration. Pollard v. Barnhart, No. 01-CV-5503 (E.D.N.Y. July 10, 2003). The court concluded that none of the new evidence submitted by Ms. Pollard was “material” because it was generated in late 2002 and early 2003, and made no mention of David’s condition between August 1995 (the alleged onset date) and September 20, 2000 (the date of the ALJ’s decision). Because the evidence did not “pertain to the time period for which benefits were denied, ... [t]he court could not have taken the documents into consideration upon reviewing the ALJ’s decision.” Order at 3-4. The court noted that although the new evidence suggested that David’s condition is worsening, since the “court is not a tribunal of first instance,” Ms. Pollard should reapply with the SSA. Id. at 4. DISCUSSION “We review the administrative record de novo to determine whether there is substantial evidence supporting the Commissioner’s decision and whether the Commissioner applied the correct legal standard.” Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir.2002); see 42 U.S.C. § 405(g). The Supreme Court has defined “substantial evidence” as “more than a mere scintilla. It means such relevant 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) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). Although factual findings by the Commissioner are “binding” when “supported by substantial evidence,” “[w]here an error of law has been made that might have affected the disposition of the case, this court cannot fulfill its statutory and constitutional duty to review the decision of the administrative agency by simply" } ]

[ { "docid": "22806896", "title": "", "text": "of his 1980 application had been reaffirmed. On June 20, 2001, Moran requested a hearing before an ALJ to challenge both decisions. On December 5, 2002, an ALJ conducted a hearing in Plattsburgh, New York, which lasted twenty-four minutes. Moran appeared pro se. The ALJ questioned both him and his wife. Shortly thereafter, by written decision dated January 14, 2003, the ALJ affirmed the Commissioner’s initial decisions to reaffirm the denials of Moran’s 1980 and 1987 applications. Decision of Robert Wright, ALJ, Jan. 14, 2003 (“ALJ Decision”) at 8. Moran sought review of the ALJ decision by bringing a civil action in the United States District Court for the Northern District of New York as provided for by 42 U.S.C. § 405(g). By decision and order dated March 21, 2007, the district court granted judgment to the Commissioner. Moran v. Barnhart, No. 05 Civ. 00434, slip op. at 25 (N.D.N.Y. Mar. 31, 2007). Moran appeals. DISCUSSION I. Standard of Review “When deciding an appeal from a denial of disability benefits, we focus on the administrative ruling rather than the district court’s opinion.” Kohler v. Astrue, 546 F.3d 260, 264-65 (2d Cir.2008) (internal quotation marks omitted). “On appeal, we conduct a plenary review of the administrative record to determine if there is substantial evidence, considering the record as a whole, to support the Commissioner’s decision and if the correct legal standards have been applied.” Id. at 265 (internal quotation marks omitted). “Substantial evidence means more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir.2008) (internal quotation marks omitted); accord Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Consol. Edison Co. of N.Y., Inc. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). Before determining whether the Commissioner’s conclusions are supported by substantial evidence, however, “we must first be satisfied that the claimant has had a full hearing under the ... regulations and in accordance with the beneficent purposes of the" }, { "docid": "19717132", "title": "", "text": "(2d Cir.2004); see also Moran v. Astrue, 569 F.3d 108, 112 (2d Cir.2009); 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive----”). Substantial evidence is “more than a mere scintilla”; it is “such relevant 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) (quoting Consol. Edison Co. of N.Y., Inc. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)); Moran, 569 F.3d at 112 (quoting Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir.2008)). The substantial-evidence test applies not only to the Commissioner’s factual findings, but also to inferences and conclusions of law to be drawn from those facts. See, e.g., Carballo ex rel. Cortes v. Apfel, 34 F.Supp.2d 208, 214 (S.D.N.Y.1999) (Sweet, J.). In determining whether the record contains substantial evidence to support a denial of benefits, the reviewing court must examine the entire record, weighing the evidence on both sides to ensure that the claim “has been fairly evaluated.” See, e.g., Brown v. Apfel, 174 F.3d 59, 62 (2d Cir.1999) (quoting Grey v. Heckler, 721 F.2d 41, 46 (2d Cir.1983)) (quotation marks omitted). It is the function of the SSA, not the courts, “to resolve evidentiary conflicts and to appraise the credibility of witnesses, including the claimant.” Carroll v. Sec’y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir.1983) (citing Richardson, 402 U.S. at 399, 91 S.Ct. 1420); see also Clark v. Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d Cir.1998). Although the ALJ need not resolve every conflict in the record, “the crucial factors in any determination must be set forth with sufficient specificity to enable [the reviewing court] to decide whether the determination is supported by substantial evidence.” Calzada v. Asture, 753 F.Supp.2d 250, 269 (S.D.N.Y.2010) (Sullivan, J.) (quoting Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir.1984)) (quotation marks omitted). To fulfill this obligation, the ALJ must not only “adequately explain his reasoning in making" }, { "docid": "2554050", "title": "", "text": "out very short and simple instructions than to Dr. Levitan’s finding that Claimant “could not be relied upon to retain instructions.” Id. At step four, the ALJ found that Claimant is unable to perform any past relevant work. Id. At step five, the ALJ found there are jobs that exist in significant numbers in the national economy that Claimant could perform. Id. Thus, the ALJ found Claimant not disabled under the Social Security Act. R. 20. II. LEGAL STANDARDS A. Standard of Review The “findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). A decision by an ALJ becomes the Commission’s final decision if the Appeals Council denies a request for review. Sims v. Apfel, 530 U.S. 103, 106-07, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000). Under such circumstances, the district court reviews the decision of the ALJ. Id. The reviewing court may enter judgment “affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). Substantial evidence is “such relevant 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). A “mere scintilla” of evidence is not enough. Id.; Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir.2002). Even when the record contains adequate evidence to support the decision, the findings will not be upheld if the ALJ does not “build an accurate and logical bridge from the evidence to the conclusion.” Berger v. Astrue, 516 F.3d 539, 544 (7th Cir.2008). If the Commissioner’s decision lacks evidentiary support or an adequate discussion of the issues, it must be remanded. Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir. 2010). Though the standard of review is deferential, a reviewing court must “conduct a critical review of the evidence” before affirming the Commissioner’s decision. McKinzey v. Astrue, 641 F.3d 884, 889 (7th Cir.2011). It may not, however, “displace the ALJ’s judgment by reconsidering facts or evidence, or by making" }, { "docid": "22806897", "title": "", "text": "ruling rather than the district court’s opinion.” Kohler v. Astrue, 546 F.3d 260, 264-65 (2d Cir.2008) (internal quotation marks omitted). “On appeal, we conduct a plenary review of the administrative record to determine if there is substantial evidence, considering the record as a whole, to support the Commissioner’s decision and if the correct legal standards have been applied.” Id. at 265 (internal quotation marks omitted). “Substantial evidence means more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir.2008) (internal quotation marks omitted); accord Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Consol. Edison Co. of N.Y., Inc. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). Before determining whether the Commissioner’s conclusions are supported by substantial evidence, however, “we must first be satisfied that the claimant has had a full hearing under the ... regulations and in accordance with the beneficent purposes of the [Social Security] Act.” Cruz, 912 F.2d at 11 (internal quotation marks omitted). “The Act must be liberally applied, for it is a remedial statute intended to include not exclude.” Id. II. Pro Se Claimants Even when a claimant is represented by counsel, it is the well-established rule in our circuit “that the social security ALJ, unlike a judge in a trial, must on behalf of all claimants ... affirmatively develop the record in light of the essentially non-adversarial nature of a benefits proceeding.” Lamay v. Comm’r of Soc. Sec., 562 F.3d 503, 508-09 (2d Cir.2009) (internal quotation marks and brackets omitted); accord Butts v. Barnhart, 388 F.3d 377, 386 (2d Cir.2004), reh’g granted in part and denied in part, 416 F.3d 101 (2d Cir.2005); Pratts v. Chater, 94 F.3d 34, 37 (2d Cir.1996); see also Gold v. Sec’y of Health, Educ. & Welfare, 463 F.2d 38, 43 (2d Cir.1972) (pro se claimant). Social Security disability determinations are “investigatory, or inquisitorial, rather than adversarial.” Butts, 388 F.3d at 386 (internal quotation marks omitted). “[I]t is the" }, { "docid": "16147977", "title": "", "text": "and lumbar spines, myofascial pain syndrome, and obesity. At step three, the ALJ determined that none of plaintiff s impairments either alone or in combination met or equaled any listed impairment set forth at 20 C.F.R. Part 404, Subpart P, Appendix 1. At step four, the ALJ found that plaintiff retained the residual functional capacity (“RFC”) to perform sedentary work, but with several limitations. The ALJ also held, based on the testimony of the vocational expert, that plaintiff could not perform her past relevant work. At step five, the ALJ determined that plaintiff was not disabled. Again relying on the testimony of the vocational expert, the ALJ concluded that plaintiff retained the RFC to perform a significant number of jobs that existed in the national economy, including lens inserter, preparer, and surveillance systems monitor. III. Standard of Review The Commissioner’s decision that plaintiff is not disabled must be affirmed if it is supported by substantial evidence. 42 U.S.C. § 405(g); Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir.2002); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir.1991). Substantial evidence is defined as “ ‘more than a mere scintilla. It means such relevant 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) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). Thus, “[i]t is not the function of a reviewing court to decide de novo whether a claimant was disabled.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999). “Where the Commissioner’s decision rests on adequate findings supported by evidence having rational probative force[,]” this Court cannot substitute its own judgment for that of the Commissioner. Veino, 312 F.3d at 586. Such a deferential standard, however, is not applied to the Commissioner’s conclusions of law. Townley v. Heckler, 748 F.2d 109, 112 (2d Cir.1984); accord Tejada, 167 F.3d at 773. This Court must independently determine if the Commissioner’s decision applied the correct legal standards in determining that plaintiff was not disabled. “Failure" }, { "docid": "16147978", "title": "", "text": "967 (2d Cir.1991). Substantial evidence is defined as “ ‘more than a mere scintilla. It means such relevant 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) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). Thus, “[i]t is not the function of a reviewing court to decide de novo whether a claimant was disabled.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999). “Where the Commissioner’s decision rests on adequate findings supported by evidence having rational probative force[,]” this Court cannot substitute its own judgment for that of the Commissioner. Veino, 312 F.3d at 586. Such a deferential standard, however, is not applied to the Commissioner’s conclusions of law. Townley v. Heckler, 748 F.2d 109, 112 (2d Cir.1984); accord Tejada, 167 F.3d at 773. This Court must independently determine if the Commissioner’s decision applied the correct legal standards in determining that plaintiff was not disabled. “Failure to apply the correct legal standards is grounds for reversal.” Townley, 748 F.2d at 112. Therefore, this Court must first review the legal standards applied, and then, if the standards were correctly applied, consider whether there is substantial evidence to support the ALJ’s determination. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir.1987); see also Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir.l998)(“ ‘Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles.’ ”)(quoting Johnson, 817 F.2d at 986). Plaintiff argues that the ALJ erred in evaluating her credibility, assessing her RFC, and questioning the vocational expert. Plaintiff also argues that the Commissioner failed to meet her burden at step five of proving that she had the RFC to perform a significant number of jobs in the national economy and that" }, { "docid": "14261138", "title": "", "text": "claimant is not disabled, by presenting evidence demonstrating that the claimant “retains a residual functional capacity to perform alternative substantial gainful work which exists in the national economy” in light of her age, education, and work experience. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.1999) (quoting Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir.1986)). See 20 CFR § 404.1560(c). The Commissioner’s decision that plaintiff is not disabled must be affirmed if it is supported by substantial evidence, and if the ALJ applied the correct legal standards. See 42 U.S.C. § 405(g); Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir.2002). Substantial evidence is defined as “more than a mere scintilla. It means such relevant 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) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). “The Court carefully considers the whole record, examining evidence from both sides ‘because an analysis of the substantiality of the evidence must also include that which detracts from its weight.’ ” Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir.1999) quoting Quinones v. Chater, 117 F.3d 29, 33 (2d Cir.1997). Still, “it is not the function of a reviewing court to decide de novo whether a claimant was disabled.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir.1999). “Where the Commissioner’s decision rests on adequate findings supported by evidence having rational probative force, [this Court] will not substitute our judgment for that of the Commissioner.” Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir.2002). ALJ Costello analyzed plaintiffs claim of disability in a lengthy, ten-page decision (seven pages of which comprises his analysis of the evidence). The ALJ set forth the medical evidence in detail, with particular focus on plaintiffs lumbar and cervical spine disorder and shoulder disorder, which he determined constituted a severe impairment not meeting or equaling a listed impairment. In analyzing the pertinent evidence of plaintiffs exertional limitations, the ALJ found that plaintiff could perform light" }, { "docid": "20621725", "title": "", "text": "the Commissioner’s motion for judgment on the pleadings and dismissed Greek’s complaint in a judgment entered on August 15, 2014. Greek timely appealed. DISCUSSION On appeal, Greek primarily argues that the ALJ failed to provide adequate reasons for giving little weight to the opinion of treating physician Dr. Wheeler. The claimant bears the ultimate burden of proving that he was disabled throughout the period for which benefits are sought. See 20 C.F.R. § 404.1512(a). Here, Greek was required to demonstrate that he was unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment ... which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The ultimate determination of whether a person has a disability within the meaning of the Act belongs to the Commissioner. See Snell v. Apfel, 177 F.3d 128, 133-34 (2d Cir.1999); 20 C.F.R. § 404.1527(d)(1). We may set aside the Commissioner’s decision only if it is based upon legal error or if the factual findings are not supported by substantial evidence in the record as a whole. Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir.2008); 42 U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla” and “means such relevant 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) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). Additionally, we may not “affirm an administrative action on grounds different from those considered by the [A]geney.” Burgess, 537 F.3d at 128 (quoting Melville v. Apfel, 198 F.3d 45, 52 (2d Cir.1999)). Here, Greek argues that the SSA erred by failing to provide adequate reasons for giving little weight to the medical opinion of his treating physician, Dr. Renee Wheeler. The SSA recognizes a rule of deference to the medical views of a physician who is engaged in the primary treatment of a claimant. Thus, “the opinion of a claimant’s" }, { "docid": "19717131", "title": "", "text": "Administration (“SSA”), claiming that he had cervical, left shoulder, and lumbar sprains from his February 2008 fall and was unable to work. Id. at 89-90,126. The application was denied. Id. at 35, 50-57. Plaintiff requested a hearing, which was held before Administrative Law Judge (“ALJ”) Andrew S. Weiss on May 13, 2010. Id. at 13-34. Two weeks later, the ALJ found Plaintiff was not disabled and denied him benefits. Id. at 36-45. Plaintiff sought review of the ALJ’s decision by the Social Security Administration’s (“SSA”) Appeals Council. Id. at 11-12. On May 19, 2011, the Appeals Council denied Plaintiffs request for review, rendering ALJ Weiss’ decision the final decision of the Commissioner. Id. at 1-6. Plaintiff then petitioned this Court for review. STANDARD OF REVIEW When a claimant challenges the SSA’s denial of disability benefits, the Court’s function is not to evaluate de novo whether the claimant is disabled, but rather to determine only “whether the correct legal standards were applied and whether substantial evidence supports the decision.” Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir.2004); see also Moran v. Astrue, 569 F.3d 108, 112 (2d Cir.2009); 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive----”). Substantial evidence is “more than a mere scintilla”; it is “such relevant 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) (quoting Consol. Edison Co. of N.Y., Inc. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)); Moran, 569 F.3d at 112 (quoting Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir.2008)). The substantial-evidence test applies not only to the Commissioner’s factual findings, but also to inferences and conclusions of law to be drawn from those facts. See, e.g., Carballo ex rel. Cortes v. Apfel, 34 F.Supp.2d 208, 214 (S.D.N.Y.1999) (Sweet, J.). In determining whether the record contains substantial evidence to support a denial of benefits, the reviewing court must examine the entire record, weighing the" }, { "docid": "20621726", "title": "", "text": "if the factual findings are not supported by substantial evidence in the record as a whole. Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir.2008); 42 U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla” and “means such relevant 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) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). Additionally, we may not “affirm an administrative action on grounds different from those considered by the [A]geney.” Burgess, 537 F.3d at 128 (quoting Melville v. Apfel, 198 F.3d 45, 52 (2d Cir.1999)). Here, Greek argues that the SSA erred by failing to provide adequate reasons for giving little weight to the medical opinion of his treating physician, Dr. Renee Wheeler. The SSA recognizes a rule of deference to the medical views of a physician who is engaged in the primary treatment of a claimant. Thus, “the opinion of a claimant’s treating physician as to the nature and severity of the impairment is given ‘controlling weight’ so long as it ‘is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.’ ” Id. at 128 (quoting 20 C.F.R. § 404.1527(c)(2)). There are, of .course, circumstances when it is appropriate for an ALJ not to give controlling weight to a treating physician’s opinion. See, e.g., Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir.2004) (per curiam) (holding that “the opinion of the treating physician is not afforded controlling weight where, as here, the treating physician issued opinions that are not consistent with other substantial evidence in the record, such as the opinions of other medical experts”). Nevertheless, even when a treating physician’s opinion is not given controlling weight, SSA regulations require the ALJ to consider several factors in determining how much weight the opinion should receive. See 20 C.F.R. § 404.1527(c)(2)(i), (2)(ii), (3)-(6). “[T]o override the opinion of the treating physician, we have held that" }, { "docid": "8502142", "title": "", "text": "Appeals Council must then consider the entire record, including the new evidence, and review a case if the “administrative law judge’s action, findings, or conclusion is contrary to the weight of the evidence currently of record.” 20 C.F.R. § 404.970(b). If the Appeals Council denies review of a case, the ALJ’s decision, and not the Appeals Council’s, is the final agency decision. See Perez, 77 F.3d at 44. Because the Appeals Council denied review in this case, our review focuses on the ALJ’s decision. See 42 U.S.C. § 405(g) (“Any individual, after any final decision of the Commissioner ..., may obtain a review of such decision by a civil action. ...” (emphasis added)). When reviewing the Commissioner’s decision, we bear in mind that the ultimate determination of whether a person has a disability within the meaning of the Act belongs to the Commissioner. See Snell v. Apfel, 177 F.3d 128, 133 (2d Cir.1999). We “review the entire administrative record, which includes the new evidence, and determine, as in every case, whether there is substantial evidence to support the decision of the Secretary.” Perez, 77 F.3d at 46; see also 42 U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla” and “means such relevant 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) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). Additionally, on appeal, we may not “affirm an administrative action on grounds different from those considered by the agency.” Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir.2008) (quoting Melville v. Apfel, 198 F.3d 45, 52 (2d Cir.1999)). The claimant bears the ultimate burden of proving that he was disabled throughout the period for which benefits are sought. See 20 C.F.R. § 404.1512(a). The claimant is required to demonstrate that he was unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment ... which has lasted or can be expected to last for" }, { "docid": "21815641", "title": "", "text": "course of treatment ... [and Garcia’s] activities of daily living.” Id. The ALJ also awarded “[s]ome weight” to the opinion of Dr. Michael McNett, one of Garcia’s treating physicians, who concluded that Garcia had no functional limitations, because the conclusion was “supported by the record,” and Garcia’s “lack of treatment for his alleged physical impairments.” R. 30-31. The ALJ also reviewed the third party function report of Ms. Norma Tejada, but granted it no more weight than the claimant’s own testimony. R. 31. The ALJ determined that Garcia was capable of performing his past relevant work as a cleaner, both “as actually and generally performed,” and thus that Garcia had not been under a disability since April 17, 2010. R. 31-32. II. APPLICABLE LAW A court reviewing a final decision by the Commissioner “is limited to determining whether the [Commissioner’s] conclusions were supported by substantial evidence in the record and were based on a correct legal standard.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir.2013) (per curiam) (citation and quotation marks omitted); accord Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir.2008); see also 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive ....”); id. § 1383(c)(3) (“The final determination of the Commissioner of Social Security ... shall be subject to judicial review as provided in section 405(g) .... ”). Substantial evidence is “ ‘more than a mere scintilla. It means such relevant 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) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)); accord Burgess, 537 F.3d at 127-28; Shaw v. Chater, 221 F.3d 126, 131 (2d Cir.2000). “Even where the administrative record may also adequately support contrary findings on particular issues, the ALJ’s factual findings must be given conclusive effect so long as they are supported by substantial evidence.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir.2010)" }, { "docid": "8253031", "title": "", "text": "16). At step five, the ALJ utilized the Medical-Vocational Grid Rules and heard testimony from a vocational expert, and concluded, based on plaintiffs age, education, and work experience, that plaintiff was not disabled because he retained the RFC to perform work at the light and sedentary exertional levels during the closed period. (Tr. 19-20). III. Standards of Review The Commissioner’s decision that plaintiff was ineligible to receive benefits must be affirmed if -it applies the correct legal standards and is supported by substantial evidence. 42 U.S.C. § 405(g); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir.2000); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir.1998). Substantial evidence is defined as “ ‘more than a mere scintilla. It means such relevant 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), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). If the Commissioner’s decision “rests on adequate findings supported by evidence having rational probative force,” a district court cannot not substitute its own judgment for that of the Commissioner. Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir.2002); see also Melville v. Apfel, 198 F.3d 45, 52 (2d Cir.1999) (“[i]t is not the function of a reviewing court to decide de novo whether a claimant was disabled.”). Such a deferential standard, however, is not applied to the Commissioner’s conclusions of law. Townley v. Heckler, 748 F.2d 109, 112 (2d Cir.1984); accord Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir.1999). The Court must determine if the Commissioner’s decision applied the correct legal standards in finding that plaintiff was not disabled. “Failure to apply the correct legal standards is grounds for reversal.” Townley, 748 F.2d at 112. Only after finding that the correct legal standards were applied should the Court consider the substantiality of the evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir.1987). “ ‘Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial" }, { "docid": "19376976", "title": "", "text": "Theorian “does not have the three marked limitations to meet Part A.” R. 13. The ALJ then considered whether Theo-rian’s impairments functionally equal any of the listings, R. 13, by assessing Theori-an’s functioning in terms of the six domains listed in 20 C.F.R. § 416.926a(b)(l). The domains listed in 20 C.F.R. § 416.926a(b)(l) are: (1) acquiring and using information; (2) attending and completing tasks; (3) interacting and relating with others; (4) moving about and manipulating objects; (5) caring for yourself; and (6) health and physical well-being. Under 20 C.F.R. § 416.926a(d), an individual must have a marked limitation in two of the domains or an extreme limitation in one domain to be considered disabled. The ALJ concluded that Theorian has a marked limitation in “attending and completing tasks,” R. 16, but that any limitation in the other domains was less than marked, R. 15-20. II. APPLICABLE LAW A. Scope of Judicial Review Under 1.2 U.S.C. § 405(g) A court reviewing a final decision by the Commissioner pursuant to 42 U.S.C. § 405(g) must first determine whether the Commissioner applied the correct legal standard. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir.1999). If the Commissioner failed to apply the correct legal standard in making a determination, the reviewing court must not defer to the Commissioner’s decision. See Townley v. Heckler, 748 F.2d 109, 112 (2d Cir.1984) (“Failure to apply the correct legal standards is grounds for reversal.”) (citation omitted). In addition, a reviewing court must also determine whether the decision is supported by substantial evidence. See, e.g., Acierno v. Barnhart, 475 F.3d 77, 80-81 (2d Cir.) (citing Pollard v. Halter, 377 F.3d 183, 188 (2d Cir.2004)), cert. denied, — U.S. -, 127 S.Ct. 2981, 168 L.Ed.2d 704 (2007); Tejada, 167 F.3d at 773; see generally 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclu sive.... ”). “Substantial evidence” is “‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Richardson v. Perales," }, { "docid": "21815642", "title": "", "text": "v. Astrue, 537 F.3d 117, 127 (2d Cir.2008); see also 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive ....”); id. § 1383(c)(3) (“The final determination of the Commissioner of Social Security ... shall be subject to judicial review as provided in section 405(g) .... ”). Substantial evidence is “ ‘more than a mere scintilla. It means such relevant 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) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)); accord Burgess, 537 F.3d at 127-28; Shaw v. Chater, 221 F.3d 126, 131 (2d Cir.2000). “Even where the administrative record may also adequately support contrary findings on particular issues, the ALJ’s factual findings must be given conclusive effect so long as they are supported by substantial evidence.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir.2010) (per curiam) (citation and internal quotation marks omitted). Thus, “[i]f the reviewing court finds substantial evidence to support the Commissioner’s final decision, that decision must be upheld, even if substantial evidence supporting the claimant’s position also exists.” Johnson v. Astrue, 563 F.Supp.2d 444, 454 (S.D.N.Y.2008) (citing Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir.1990)); accord McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir.2014) (“If evidence is susceptible to more than one rational interpretation, the Commissioner’s conclusion must be upheld.”) (citation omitted). The Second Circuit has characterized the “substantial evidence” standard as “a very deferential standard of review—even more so than the ‘clearly erroneous’ standard.” Brault v. Soc. Sec. Admin,, Comm’r, 683 F.3d 443, 447-48 (2d Cir.2012) (per curiam) (citation omitted). “The substantial evidence standard means once an ALJ finds facts, [a court] can reject those facts only if a reasonable factfinder would have to conclude otherwise.” Id. at 448 (emphasis in original) (citation and internal quotation marks omitted). “The role of the reviewing court is therefore quite limited and substantial deference is to" }, { "docid": "8502143", "title": "", "text": "to support the decision of the Secretary.” Perez, 77 F.3d at 46; see also 42 U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla” and “means such relevant 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) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). Additionally, on appeal, we may not “affirm an administrative action on grounds different from those considered by the agency.” Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir.2008) (quoting Melville v. Apfel, 198 F.3d 45, 52 (2d Cir.1999)). The claimant bears the ultimate burden of proving that he was disabled throughout the period for which benefits are sought. See 20 C.F.R. § 404.1512(a). The claimant is required to demonstrate that he was unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment ... which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). Here, Lesterhuis argues that the ALJ’s decision was not supported by substantial evidence, particularly in light of treating physician Dr. Holder’s medical opinion, which was added to the record by the Appeals Council. We agree that, on the facts of this case, the ALJ’s decision was not supported by substantial evidence because the new evidence contradicted the ALJ’s conclusion in important respects. See Perez, 77 F.3d at 47. Specifically, Dr. Holder is a treating physician who provided an opinion that is (1) generally entitled to controlling weight, (2) likely dispositive on the issue of disability (if entitled to controlling weight), and (3) uncontroverted by other evidence in the record. First, Dr. Holder is a treating physician, so SSA regulations give his opinions “controlling weight” so long as they are “well-supported by medically acceptable ... techniques and [are] not inconsistent with the other substantial evidence in [the record].” 20 C.F.R. § 404.1527(c)(2). On remand, the ALJ might conclude that Dr. Holder’s opinion is" }, { "docid": "8418830", "title": "", "text": "findings of the Commissioner ... as to any fact, if supported by substantial evidence, shall be conclusive”); accord Shaw v. Chafer, 221 F.3d 126, 131 (2d Cir.2000); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.1999); Brown v. Apfel, 174 F.3d 59, 61 (2d Cir.1999); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir.1998). Substantial evidence is “‘more than a mere scintilla. It means such relevant 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) (quoting Consol. Edison Co. v. NLRB., 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). The role of the reviewing court is therefore “quite limited and substantial deference' is to be afforded the Commissioner’s decision.” Burris v. Chater, 1996 WL 148345, at *3 (S.D.N.Y. Apr.2, 1996). This deference extends not only to factual findings but also to conclusions, which can be drawn from those facts. See Levine v. Gardner, 360 F.2d 727, 730 (2d Cir.1966). If the reviewing court finds substantial evidence to support the Commissioner’s final decision, that decision must be upheld, even where substantial evidence supporting the claimant’s position also exists. Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir.1990); Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir.1982). Although the court is not to conduct a de novo review of the underlying claim, Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir.1991), the reviewing court is required to “examine the entire record, including contradictory evidence” in order “to determine whether the findings are supported by substantial evidence.” Brown, 174 F.3d at 62 (citation and internal quotation marks omitted). However, “where there is a reasonable basis for doubt whether the ALJ applied the correct legal principles, application of the substantial evidence standard to uphold a finding of disability creates an unacceptable risk that a claimant will be deprived of the right to have his disability determination made according to the correct legal principles.” Johnson v. Bowen, 817 F.2d 988, 986 (2d Cir.1987); see also Tejada v. Apfel, 167 F.3d 770, 773 (2d" }, { "docid": "19376977", "title": "", "text": "whether the Commissioner applied the correct legal standard. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir.1999). If the Commissioner failed to apply the correct legal standard in making a determination, the reviewing court must not defer to the Commissioner’s decision. See Townley v. Heckler, 748 F.2d 109, 112 (2d Cir.1984) (“Failure to apply the correct legal standards is grounds for reversal.”) (citation omitted). In addition, a reviewing court must also determine whether the decision is supported by substantial evidence. See, e.g., Acierno v. Barnhart, 475 F.3d 77, 80-81 (2d Cir.) (citing Pollard v. Halter, 377 F.3d 183, 188 (2d Cir.2004)), cert. denied, — U.S. -, 127 S.Ct. 2981, 168 L.Ed.2d 704 (2007); Tejada, 167 F.3d at 773; see generally 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclu sive.... ”). “Substantial evidence” is “‘more than a mere scintilla. It means such relevant 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) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)); accord Matthews v. Leavitt, 452 F.3d 145, 152 n. 9 (2d Cir.2006); Shaw v. Chafer, 221 F.3d 126, 131 (2d Cir.2000). If the reviewing court finds substantial evidence to support the Commissioner’s final decision, that decision must be upheld, even if substantial evidence supporting the claimant’s position also exists. See generally Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir.1990) (“Where there is substantial evidence to support either position, the determination is one to be made by the factfinder.”) (citation omitted). “The role of the reviewing court is therefore ‘quite limited and substantial deference is to be afforded the Commissioner’s decision.’ ” Hernandez v. Barnhart, 2007 WL 2710388, at *7 (S.D.N.Y. Sept. 18, 2007) (quoting Burris v. Chater, 1996 WL 148345, at *3 (S.D.N.Y. Apr. 2, 1996)). B. Legal Standard Governing Evaluation of Disability Claims for Children To qualify for SSI, a child under the age of" }, { "docid": "12259467", "title": "", "text": "determination, and has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(d). See also Fed.R.Civ.P. 72(b). III. DISCUSSION A. Scope of Review A court’s review under 42 U.S.C. § 405(g) of a final decision by the Commissioner is limited; that review requires a determination of whether the. correct legal standards were applied, and whether the decision is supported by substantial evidence. Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir.2002); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir.2000); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir.1998); Martone v. Apfel, 70 F.Supp.2d 145, 148 (N.D.N.Y.1999) (Hurd, J.) (citing Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir.1987)). Where there is reasonable doubt as to whether the Commissioner applied the proper legal standards, his decision should not be affirmed even though the ultimate conclusion reached is arguably supported by substantial evidence. Martone, 70 F.Supp.2d at 148. If, however, the correct legal standards have been applied and the ALJ’s findings are supported by substantial evidence, those findings are conclusive, and the decision should withstand judicial scrutiny regardless of whether the reviewing court might have reached a contrary result if acting as the trier of fact. Veino, 312 F.3d at 586; Williams v. Bowen, 859 F.2d 255, 258 (2d Cir.1988); Barnett v. Apfel, 13 F.Supp.2d 312, 314 (N.D.N.Y.1998) (Hurd, M.J.); see also 42 U.S.C. § 405(g). The term “substantial evidence” has been defined as “‘such relevant 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, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)); Jasinski v. Barnhart, 341 F.3d 182, 184 (2d Cir.2003). To be substantial, there must be “ ‘more than a mere scintilla’ ” of evidence scattered throughout the administrative record. Richardson, 402 U.S. at 401, 91 S.Ct. at 1427; Martone, 70 F.Supp.2d at 148 (citing Richardson ). “To determine on appeal whether" }, { "docid": "8418829", "title": "", "text": "impairment is not listed or is not equal to one of the listed impairments, the Commissioner must review the claimant’s residual functional ability to determine if the claimant is able to do work he or she has done in the past. If the claimant is able to do such work, he or she is considered not to be disabled. 20 C.F.R. § 416.920(e). Finally, if the claimant is unable to perform past work, the Commissioner must decide if the claimant’s residual functional capacity permits the claimant to do other work. If the claimant cannot perform other work, the claimant will be deemed disabled. 20 C.F.R. § 416.920(f). The claimant bears the burden of proof on all steps except the final one (that is, proving that there is other work the claimant can perform). Curry, 209 F.3d at 122. B. Standard of Court Review The scope of review of the Commissioner’s final decision by a court is limited to determining whether there is “substantial evidence” to support the Commissioner’s determination. See 42 U.S.C. § 405(g) (“[t]he findings of the Commissioner ... as to any fact, if supported by substantial evidence, shall be conclusive”); accord Shaw v. Chafer, 221 F.3d 126, 131 (2d Cir.2000); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.1999); Brown v. Apfel, 174 F.3d 59, 61 (2d Cir.1999); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir.1998). Substantial evidence is “‘more than a mere scintilla. It means such relevant 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) (quoting Consol. Edison Co. v. NLRB., 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). The role of the reviewing court is therefore “quite limited and substantial deference' is to be afforded the Commissioner’s decision.” Burris v. Chater, 1996 WL 148345, at *3 (S.D.N.Y. Apr.2, 1996). This deference extends not only to factual findings but also to conclusions, which can be drawn from those facts. See Levine v. Gardner, 360 F.2d 727, 730 (2d Cir.1966). If the reviewing court" } ]

[ { "docid": "11707847", "title": "", "text": "and had the Internal Eevenue Bureau not issued to Section III the ruling letter set forth in paragraph 30 above, the parties would be in agreement that all gain realized by the plaintiffs from such distributions was properly taxable as ordinary income pursuant to the provisions of section 117(m) (1) of such Code. 35. Each of the six Shirley-Duke corporations maintains its books and records and files its tax returns on the accrual method of accounting, using the fiscal year ending May 31. 36. Alfred Bornstein and Eobert E. Bornstein are the sons of William Bornstein. All three Bornsteins and Adolph Klein, during the years here in issue, conducted a plumbing contracting and real estate investment business as partners. They also performed plumbing contracting work in the construction of the Shirley-Duke project. CONCLUSION' 0E LAW Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiffs are not entitled to recover, and their petitions are therefore dismissed. Burge v. Commissioner, 233 F. 2d 765 (4th Cir. 1958); Glickman v. Commissioner, 256 F. 2d. 108 (2d Cir. 1958); Weil v. Commissioner, 252 F. 2d 805 (2d Cir. 1958); Abbott v. Commissioner, 28 T.C. 795, Aff’d, 258 F. 2d 537 (3d Cir. 1958); Mintz v. Commissioner, 32 T.C. 723, Aff’d, 284 F. 2d 554 (2d Cir. 1960); Hartman v. Commissioner, 34 T.C. 1085, Aff’d, 296 F. 2d 726 (2d Cir. 1961) There are also controlling factual differences between these cases and International Business Machines Corp. v. United, States, ante p. 357, 343 F. 2d 914. In that case the court applied Section 7805(b) of the Internal Revenue Code of 1954 in behalf of a taxpayer who had made prompt application to obtain a private ruling to the same effect as a ruling issued to another taxpayer, which manufactured and sold business machines that were similar in all material respects to the machines manufactured by plaintiff. In these cases, none of the taxpayers nor the corporations in which they are shareholders ashed for rulings." } ]

[ { "docid": "22840355", "title": "", "text": "S.Ct. .269, 52 L.Ed.2d 223 (1960) ; Goodstein v. Commissioner of Internal Revenue, 267 F.2d 127, 132 (C.A. 1, 1959); City Loan & Savings Co. v. United States, 177 F.Supp. 843, 851 (N.D.Ohio, 1959), aff’d, 287 F.2d 612, 616 (C.A. 6, 1961). Equality of treatment is so dominant in our understanding of justice that discretion, where it.is . allowed a role, must pay the strictest heed. The third principle inherent in -Section 7805(b) is that the Commissioner’s exercise of discretion is reviewable (in a proper proceeding) for abuse, in the same way as other discretionary administrative determinations. The Internal Revenue Service does not have carte blanche. Its choice must be a rational one, supported by relevant considerations. See Automobile Club of Michigan v. Commissioner of Internal Revenue and the other cases cited supra; Lesavoy Foundation v. Commissioner of Internal Revenue, 238 F.2d 589 (C.A. 3,1956) ; Goodstein v. Commissioner of Internal Revenue, supra; Lynn and Gerson, QuasiEstoppel and Abuse of Discretion as Applied Against the United States in Federal Tax Controversies, 19 Tax L.Rev. 487, 509 ff. (1964). It is plain that Section 7805 (b), embodying these principles, governs plaintiff’s case. The Commissioner’s letter of November 26, 1957, denying the '■request for exemption of Type 604 computers, was a “ruling”, “relating to the internal revenue laws”, to which this Code • provision applied. Plaintiff had sought, by its letter of July 13, 1955,, an “immediate ruling” on the status of the equipment; the Service was asked to “rule on” that question, in light of the fact “that your Office recently ruled that the same types of machines produced by Remington Rand, Inc. are not subject to the Manufacturers’ Excise Tax” (emphasis added). The answer of the Service, in November 1957, referred to the taxpayer’s letter “wherein a ruling is requested relative to the taxability” of the machines, and to IBM’s feeling “that we should issue a specific ruling regarding the taxability of these machines of its manufacture” (emphasis added). The response then goes on to issue such a ruling, negative in character but still a ruling. The operation of Section" }, { "docid": "22840364", "title": "", "text": "important that there be like treatment to those who should be dealt with on the same basis. Automobile Club of Michigan v. Commissioner of Internal Revenue, supra, 358 U.S. at 186, 77 S.Ct. 707, 1 L.Ed.2d 746 and other cases cited supra at p. 920 of 343 F.2d. Parity in the levying of manufacturers’ excises is peculiarly essential to free and fair competition. See Exchange Parts Co. v. United States, supra, 279 F.2d at 253, 150 Ct.Cl. at 541; H.Rept. No. 708, 72d Cong., 1st Sess., pp. 31, 32 (1932). The gap here in the imposition of the “business machines” tax was so large that the Commissioner could not choose to ignore it if an appropriate remedy was at hand. Once the Commissioner determined- to deal with Remington in the way he did, the means of equalization were apparent on the face of Section 7805(b) which empowered him “to limit retroactive application to the extent necessary to avoid inequitable results.” Automobile Club of Michigan v. Commissioner of Internal Revenue, supra, 353 U.S. at 184, 77 S.Ct. at 710. If he were not to abuse his discretion, the Commissioner was compelled to decide that the ruling given to IBM should be “applied without retroactive effect” so as to place the two competitors on the same plane. Since Remington was being freed of the tax from January 1,1952, to February 1,1958, the plaintiff, too, should have been accorded that dispensation. The Service has often announced that rulings imposing or confirming a tax will not be applied retroactively. Many, but not all (see fn. 13), have concerned departures from prior published rulings, but nothing in Section 7805(b) limits the Commissioner’s authority to that particular area. If, as in this instance, other elements make non-retroactivity imperative, the statute calls for it. To opt for retroactivity where the opposite is required is an abuse of the discretion granted by the section. The omission of the Service to do what it was compelled by the circumstances to do leads inevitably to IBM’s recovery of the taxes paid for the period from January 1, 1952, to February" }, { "docid": "22840380", "title": "", "text": "inequitable results that it is believed desirable to lodge in the Treasury Department the power to avoid these results by applying certain regulations, Treasury decisions, and rulings with prospective effect only.” [Cum.Bull. 1939-1 (Part 2) p. 583] ^Emphasis added] From the above-quoted language in the House Report, it seems altogether clear that Congress vested the Commissioner with the discretion to limit the retroactive application of any ruling, regulation, or Treasury decision when necessary to avoid inequities to taxpayers who have acted to their detriment in relying upon prior decisions, regulations, or rulings. Therefore, in my opinion, a showing of detriment and reliance is generally necessary to establish an abuse of discretion under Section 7805(b). See Lynn and Gerson Quasi-Estoppel and Abuse of Discretion as Applied Against the United States in Federal Tax Controversies, 19 Tax L.Rev. 487, 508 (1964). As stated above, plaintiff did not show that it closed any transactions in reliance on the private ruling given to Remington Rand, or that it suffered any competitive disadvantage as a result of the ruling. At a pretrial conference held before our trial commissioner (para. 16 Commissioner’s Memorandum of Pretrial Conference) defendant put plaintiff on notice that if its right to recover was predicated upon an alleged competitive disadvantage inflicted upon it by the Commissioner of Internal Revenue, plaintiff could support its claim only by producing evidence of sales opportunities -lost because excise taxes were imposed on its machines but not upon those of Remington Rand. Plaintiff did not offer any proof on the point. Also, plaintiff did not absorb any of the excise taxes on the machines sold or leased to its customers. In a series of decisions by the First Circuit, the Third Circuit and the Tax Court, the courts were faced with actions by taxpayers, who had not received private rulings from the Internal Revenue Service. They argued that when the Commissioner revoked a previous letter ruling issued to another taxpayer, the retroactive application of that change in position as to them constituted a discriminatory abuse of the discretion granted by Section 7805(b) or its predecessor. Insofar as" }, { "docid": "22840377", "title": "", "text": "subject to the excise tax. The ruling in favor of Remington Rand was revoked December 3, 1957, but, as to if, the new ruling was made applicable only for the period beginning on and after February 1, 1958. On November 26, 1957, the Commissioner, in response to plaintiff’s request for a private ruling, notified plaintiff that its machines were taxable. There was no retroactive application of a private ruling issued to plaintiff or of a published ruling covering its machines. Third, there is no evidence in the record that plaintiff closed any transactions in reliance on the private ruling given to Remington Rand, or that-it suffered any competitive disadvantage as a result of the Commissioner’s action. The court recognizes that when the Internal Revenue Service revoked the pri vate ruling given to Rand, it could not apply the ruling of revocation to Remington Rand retroactively because of the provisions of Section 1108(b) of the Revenue Act of 1926 (quoted in footnote 10 of the court’s opinion). There is no corresponding statutory provision which would have authorized the Commissioner of Internal Revenue to forgive the tax on plaintiff’s sales during the period that the erroneous ruling to Remington Rand was outstanding. Nevertheless, the court holds that the Commissioner abused the discretion reposed in him by Section 7805 (b) of the Internal Revenue Code of 1954, when he failed to apply the ruling given to plaintiff (that its machines were taxable) without retroactive effect so that both competitors would be placed on the same plane. The predecessor of Section 7805(b) was first enacted in substantially its present form as Section 506 of the Revenue Act of 1934, which amended Section 1108 (a) of the Revenue Act of 1926. The purposes for which the new Section 506 was enacted are set forth in substantially the same -language in both H.Rep. No. 704, 73d Cong., 2d Sess., at page 38 and S.Rep.No.558, 73d Cong., 2d Sess., at page 48. The House Report reads as follows: “Section 506. Retroactivity of rulings: This section .amends section 1108(a) of the Revenue Act of 1926, as amended, so" }, { "docid": "22840381", "title": "", "text": "a pretrial conference held before our trial commissioner (para. 16 Commissioner’s Memorandum of Pretrial Conference) defendant put plaintiff on notice that if its right to recover was predicated upon an alleged competitive disadvantage inflicted upon it by the Commissioner of Internal Revenue, plaintiff could support its claim only by producing evidence of sales opportunities -lost because excise taxes were imposed on its machines but not upon those of Remington Rand. Plaintiff did not offer any proof on the point. Also, plaintiff did not absorb any of the excise taxes on the machines sold or leased to its customers. In a series of decisions by the First Circuit, the Third Circuit and the Tax Court, the courts were faced with actions by taxpayers, who had not received private rulings from the Internal Revenue Service. They argued that when the Commissioner revoked a previous letter ruling issued to another taxpayer, the retroactive application of that change in position as to them constituted a discriminatory abuse of the discretion granted by Section 7805(b) or its predecessor. Insofar as taxability was concerned, the situation of these taxpayers was the same or similar to that of the taxpayer who had received the ruling, and it was shown or assumed that the plaintiffs in each case had relied on the previous rulings. Weller v. Commissioner, 270 F.2d 294 (3d Cir. 1959), cert. denied, 364 U.S. 908, 81 S.Ct. 269, 5 L.Ed.2d 223; Estate of Bennett v. Commissioner of Internal Revenue, P.H. Memo. T.C. Para. 60253 (1960); Gerstell v. Commissioner of Internal Revenue, P.H. Memo. T.C. Para. 62181 (1962), Aff’d 319 F.2d 131 (3d Cir. 1963); Goodstein v. Commissioner of Internal Revenue, 267 F.2d 127 (1st Cir. 1959). In each case, -the court held that the issuance of a ruling to a particular taxpayer was a sufficient basis for the Commissioner, in the exercise of Tiis discretion, to apply the change in position retroactively as to taxpayers who had not received rulings. Thus, in Weller, the Third Circuit stated: “Petitioners contend, however, that although the revenue ruling fails to indicate any limitation on its application, agents of" }, { "docid": "22286915", "title": "", "text": "7805(b) where the suing taxpayer has himself asked for a ruling, but instances in which the taxpayer simply claimed freedom from the tax on the basis of a private ruling to a separate person. We need not, and do not, depart from that settled principle since we do not decide this case on the ground that IBM had a right to invoke or rely upon Remington’s private ruling of April 1955. We rest on the wholly different basis that IBM, having taken the pains to ask promptly for its own ruling, was entitled to have the Service’s ruling, in response to that request, controlled by the standard of equality and fairness incorporated in Section 7805 (b). Plaintiff’s statutory right to this type of equal protection is not cut off by its omission to prove that it lost business by virtue of the discriminatory treatment. The inequality inheres in the payment of the tax by IBM and its customers while Remington and its customers were allowed to go free. The injury lies in the collection of taxes which are now found not to have been collectible. No more than in the normal refund case must plaintiff show, in this suit to enforce Section 7805(b), any injury or detriment other than the payment of a tax which the Government should not retain. The Code does not demand any special or greater proof of harm as a condition of recovery for an abuse of discretion under Section 7805(b) . The goal of that provision, when it applies, is to outlaw “inequitable results” in taxation (Automobile Club of Michigan v. Comissioner, supra), not merely to compensate for an additional injury over and above the unequal levying of the tax. It would weaken and dilute the standard of equality Congress put into the section to add the gloss that, even though the Service violated the statute, the taxpayer is without remedy unless he proves that he lost business or competitive position. The taxpayer’s claim is founded on a right granted by Congress, not merely on principles of estoppel evolved judicially as part of a limited" }, { "docid": "22286924", "title": "", "text": "its machines were not taxable on the ground that the Commissioner of Internal Revenue had, on April 15, 1955, issued a private ruling to Remington Rand that its computing machines, which were similar in all material respects to plaintiff’s machines, were not subject to the excise tax. The ruling in favor of Remington Rand was revoked December 3, 1957, but, as to it, the new ruling was made applicable only for the period beginning on and after February 1, 1958, 'On November 26, 1957, the Commissioner, in response to plaintiff’s request for a private ruling, notified plaintiff that its machines were taxable. There was no retroactive application of a private ruling issued to plaintiff or of a published ruling covering its machines. Third, there is no evidence in the record that plaintiff closed any transactions in reliance on the private ruling given to Remington Rand, or that it suffered any competitive disadvantage as a result of the Commissioner’s action. The court recognizes that when the Internal Revenue Service revoked the private ruling given to Rand, it could not apply the ruling of revocation to Remington Rand retroactively because of the provisions of Section 1108 (b) of the Revenue Act of 1926 (quoted in footnote 10 of the court’s opinion). ■ There is no corresponding statutory provision which would have authorized the Commissioner of Internal Revenue to forgive the tax on plaintiff’s sales during the period that the erroneous ruling to Remington Rand was outstanding. Nevertheless, the court holds that the Commissioner abused the discretion reposed in him by Section 7805(b) of the Internal Revenue Code of 1954, when he failed to apply the ruling given to plaintiff (that its machines were taxable) without retroactive effect so that both competitors would be placed on the same plane. The predecessor of Section 7805(b) was first enacted in substantially its present form as Section 506 of the Revenue Act of 1934, which amended Section 1108(a) of the Revenue Act of 1926. The purposes for which the new Section 506 was enacted are set forth in substantially the same language in both II. Rep." }, { "docid": "22286927", "title": "", "text": "Regulations, Treasury decisions, and rulings which are merely interpretive of the statute, will normally have a universal application, but in some oases the application of regulations, Treaswry decisions, and rulings to past transactions which have been closed by taxpayers in reliance upon existing practice, will work such inequitable results that it is believed desirable to lodge in the Treaswry Department the power to avoid these results by applying certain regulations, Treaswry decisions, and rulings with prospective effect only. ' [Cum. Bull. 1939-1 (Part 2) p. 583] [Emphasis added] . From the above-quoted language in the House Report, it seems altogether clear that Congress vested the Commissioner with the discretion to limit the retroactive application of any ruling, regulation, or Treasury decision when necessary to avoid inequities to taxpayers who have acted to their detriment in relying upon prior decisions, regulations, or rulings. Therefore, in my opinion, a showing of detriment and reliance is generally necessary to establish an abuse of discretion under Section 7805(b). See Lynn and Gerson Quasi-Estoppel and Abuse of Discretion as Applied Against the United States in Federal Tax Controversies, 19 Tax L. Rev. 487, 508 (1964). As stated above, plaintiff did not show that it closed any transactions in reliance on the private ruling given to Remington Rand, or that it suffered any competitive disadvantage as a result of the ruling. At a pretrial conference held before our trial commissioner (para. 16 Commissioner’s Memorandum of Pretrial Conference) defendant put plaintiff on notice that if its right to recover was predicated' upon an alleged competitive disadvantage inflicted upon it by the Commissioner of Internal Revenue, plaintiff could support its claim only by producing evidence of sales opportunities lost because excise taxes were imposed on its machines but not upon those of Remington Rand. Plaintiff did not offer any proof on the point. Also, plaintiff did not absorb any of the excise taxes on the machines sold or leased to its customers. In a series of decisions by the First Circuit, the Third Circuit and the Tax Court, the courts were faced with actions by (taxpayers, who had" }, { "docid": "22840368", "title": "", "text": "equality and fairness incorporated in Section 7805(b). Plaintiff’s statutory right to this type of equal protection is not cut off by its omission to prove that it lost business by virtue of the discriminatory treatment. The- inequality inheres in the payment of the tax by IBM and its customers while Remington and its customers were allowed to go free. The injury lies in the collection of taxes which are now found not to have been collectible. No more than in the normal refund case must plaintiff show, in this suit to enforce Section 7805(b), any injury or detriment other than the payment of a tax which the Government should not retain. The Code does not demand any special or greater proof of harm as a condition of recovery for an abuse of discretion under Section 7805(b). The goal of that provision, when it applies, is to outlaw “inequitable results” in taxation (Automobile Club of Michigan v. Commissioner of Internal Revenue, supra), not merely to compensate for an additional injury over and above the unequal levying of the tax. It would weaken and dilute the standard of equality Congress put into the section to add the gloss that, even though the Service violated the statute, the taxpayer is without remedy unless he proves that he lost business or competitive position. The taxpayer’s claim is founded on a right granted by Congress, not merely on principles of es-toppel evolved judicially as part of a limited “common law” effort to further fairness. In Connecticut Ry. & Lighting Co. and Exchange Parts, supra (see footnote 14), there was no proof of any special loss, and for part of the period involved in Exchange Parts there was no showing of reliance on any Internal Revenue Service ruling or position. For these reasons, the plaintiff is entitled to recover, subject to the showing called for by Part I, supra, the manufacturers’ excise taxes paid by it, on its Type 604 computing systems, during the period from January 1, 1952, through January 31, 1958. Judgment is entered to that effect. The amount of recovery will be determined" }, { "docid": "22286905", "title": "", "text": "the only type of “ruling” within Section 7805 (b); a private ruling is clearly included in the general category of “any ruling or regulation, relating to the internal revenue laws” (emphasis added). We must thus decide whether the Commissioner of Internal Revenue abused his discretion, under Section 7805(b), when he insisted that, as to this taxpayer, his ruling of November 1957 that the computers were taxable should be retroactive rather than prospective. When we examine the agreed facts, we cannot escape holding that there was a clear abuse, that the circumstances compelled the Service to confine its ruling (when it was finally given) to the future period for which Remington Rand’s computers were to be held taxable. Every material vector, as we gauge them, points to that resolution. Here were the two competitors in the field of large electronic computing systems. The ten percent “business ma- on purchaser or lessee, was obviously a significant element in sales and leases. Prior to April 1955, both companies paid that tax. Bemington obtained an exemption in the middle of April 1955, and this exemption continued until February 1, 1958. Shortly 'after learning of this ruling, IBM sought (in July 1955) an “immediate ruling” to the same effect for its identical equipment ; its request was marked “ Urgent! Please Expedite”, and the last paragraph referred to “the extreme urgency of this matter.” Since the competing machines had already been freed from the tax, the Internal Bevenue Service could not help but know that each month it lagged in responding to plaintiff would likely work a serious commercial detriment. Nevertheless, the Service waited almost two and one-half years before it rejected IBM’s request, and two months more before it made Bemington’s competing equipment taxable for the future. Meanwhile, IBM continued to pay the tax, as it was required to do under the law, while Remington’s disposal of its devices was tax-free. The Service must have known, too, that it could not ultimately equalize the burdens of the two competitors by requiring Remington to pay the tax for the past period. Under Section 1108 (b)" }, { "docid": "22286903", "title": "", "text": "612, 616 (6th Cir., 1961). Equality of treatment is so dominant in our understanding of justice that discretion, where it is allowed a role, must pay the strictest heed. The third principle inherent in Section 7805(b) is that the Commissioner’s exercise of discretion is reviewable (in a proper proceeding) for abuse, in the same way as other discretionary administrative determinations. The Internal Revenue Service does not have carte blanche. Its choice must be a rational one, supported by relevant considerations. See Automobile Club of Michigan v. Commissioner, and the other cases cited supra; Lesavoy Foundation v. Commissioner, 238 F. 2d 589 (3d Cir., 1956); Goodstein v. Commissioner, supra; Lynn and Gerson, Quasi-Estoppel and Abuse of Discretion as Applied Against the United States in Federal Tax Controversies, 19 Tax L. Rev. 487, 509 ff. (1964). It is plain that Section 7805(b), embodying these principles, governs plaintiff’s case. The Commissioner’s letter of November 26, 1957, denying the request for exemption of Type 604 computers, was a “ruling”, “relating to the internal revenue laws”, to which this Code provision applied. Plaintiff had sought, by its letter of July 13,1955, an “immediate ruling” on the status of the equipment; the Service was asked to “rule on” that question, in light of the fact “that your Office recently ruled that the same types of machines produced by Remington Rand, Inc. are not subject to the Manufacturers’ Excise Tax” (emphasis added). The answer of the Service, in November 1957, referred to the taxpayer’s letter “wherein a ruling is requested relative to the taxa-bility” of the machines, and to IBM’s feeling “that we should issue a specific ruling regarding the taxability of these machines of its manufacture” (emphasis added). The response then goes on to issue such a ruling, negative in character but still a ruling. The operation of Section 7805(b) is not limited, either by its terms or its history, to Service rulings granting exemptions from taxation or acceding to the applicant’s request. Like a judicial decision adverse to a party, a ruling against the taxpayer is nevertheless a ruling. Similarly, a published ruling is not" }, { "docid": "2923898", "title": "", "text": "equipment from the business machines excise tax. IBM promptly sought the same treatment and also filed a claim for refund. Several months after issuance of the favorable ruling, the IRS refunded the excise taxes that Remington Rand had paid. In the meantime, however, the IRS had taken no action with respect to IBM’s pending requests. Then, two years later, the IRS decided to revoke, but only prospectively, the favorable ruling it had granted Remington Rand and, at the same time, denied IBM’s request for a refund. As a result, from the date it received a favorable ruling until the date of the ruling’s revocation, Remington Rand was able to market its products free of the business machines excise tax that IBM was required to collect from its customers and that, as a result, had increased the cost of IBM’s equipment. In addressing this situation, the court concluded that the IRS’s failure to relieve IBM of the burden resulting from the unequal imposition of the excise tax was an abuse of the discretion granted the IRS under I.R.C. § 7805(b) “to limit retroactive application [of rules and regulations] to the extent necessary to avoid inequitable results.” 343 F.2d at 923 (quoting Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 184, 77 S.Ct. 707, 1 L.Ed.2d 746 (1957)). Consequently, the court ordered that IBM be granted a refund of the excise taxes it had been required to pay during the years Remington Rand had been relieved of the burden of those taxes. In explaining this result, the court was careful to point out that its decision did not intend to signal a departure from the principle, recognized in numerous cases, “that one taxpayer has no right to rely on an incorrect private letter ruling to another.” Id. at 924. Such cases, the court explained, do not implicate the IRS’s failure to exercise its discretion under section 7805(b) in situations where the suing taxpayer had asked for a ruling. Rather, the court observed, they involve “instances in which the taxpayer simply claimed freedom from the tax on the basis of a private" }, { "docid": "22840357", "title": "", "text": "7805(b) is not limited, either by its terms or its history, to Service rulings granting exemptions from taxation or acceding to the applicant’s request.- Like a judicial decision adverse to a party, a ruling against the taxpayer is nevertheless a ruling. Similarly, a published ruling is not the only type of “ruling” within Section 7805 (b) ; a private ruling is clearly included in the general category of “any ruling or regulation, relating to the internal revenue laws” (emphasis added). We must thus decide whether the Commissioner of Internal Revenue abused his discretion, under Section 7805(b), when he insisted that, as to this taxpayer, his ruling of November 1957 that the computers were taxable should be retroactive rather than prospective. When we examine the agreed facts, we cannot escape holding that there was a clear abuse, that the circumstances compelled the Service to confine its ruling (when it was finally given) to the future period for which Remington Rand’s computers were to be held taxable. Every material vector, as we gauge them, points to that resolution. Here were the two competitors in the field of large electronic computing systems. The ten percent “business machines” tax, normally passed on to the purchaser or lessee, was obviously a significant element in sales and leases. Pri- or to April 1955, both companies paid that tax. Remington obtained an exemption in the middle of April 1955, and this exemption continued until February 1, 1958. Shortly after learning of this ruling, IBM sought (in July 1955). an “immediate ruling” to the same effect for its identical equipment; its request was marked “Urgent! Please Expedite”, and the last paragraph referred to “the extreme urgency of this matter.” Since the competing machines had already been freed from the tax, the Internal Revenue Service could not help but know that each month it lagged in responding to plaintiff would likely work a serious commercial detriment. Nevertheless, the Service waited almost two and one-half years before it rejected IBM’s request, and two months more before it made Remington’s competing equipment taxable for the future. Meanwhile, IBM continued to pay" }, { "docid": "22840367", "title": "", "text": "the broader principle of the decisions is that a refund suit lies for the past period whenever the Service has improperly made its ruling retroactive as to the suing taxpayer. We know of no holding opposed. The numerous cases saying that one taxpayer has no right to rely on an incorrect private ruling to another are irrelevant; they concerned, not the discretion of the Commissioner under Section 7805(h) where the suing taxpayer has himself asked for a ruling, but instances in which the taxpayer simply claimed freedom from the tax on the basis of a private ruling to a separate person. We need not, and do not, depart from that settled principle since we do not decide this case on- the ground that IBM had a right to invoke or rely upon Remington’s private ruling of April 1955. We rest on the wholly different basis that IBM, having taken the pains to ask promptly for its own ruling, was entitled to have the Service’s ruling, in response to that request, controlled by the standard of equality and fairness incorporated in Section 7805(b). Plaintiff’s statutory right to this type of equal protection is not cut off by its omission to prove that it lost business by virtue of the discriminatory treatment. The- inequality inheres in the payment of the tax by IBM and its customers while Remington and its customers were allowed to go free. The injury lies in the collection of taxes which are now found not to have been collectible. No more than in the normal refund case must plaintiff show, in this suit to enforce Section 7805(b), any injury or detriment other than the payment of a tax which the Government should not retain. The Code does not demand any special or greater proof of harm as a condition of recovery for an abuse of discretion under Section 7805(b). The goal of that provision, when it applies, is to outlaw “inequitable results” in taxation (Automobile Club of Michigan v. Commissioner of Internal Revenue, supra), not merely to compensate for an additional injury over and above the unequal levying" }, { "docid": "2923897", "title": "", "text": "value. See I.R.C. § 6110(k)(3) (“a written determination may not be used or cited as precedent”); Treas. Reg. § 601.201(0(6) (“A ruling issued to a taxpayer with respect to a particular transaction represents a holding of the Service on that transaction only.”). This does not mean, of course, that private letter rulings cannot be looked to as a source of guidance in understanding the IRS’s interpretation of the tax laws. See Hanover Bank v. Commissioner, 369 U.S. 672, 686, 82 S.Ct. 1080, 8 L.Ed.2d 187 (1962) (“such rulings do reveal the interpretation put upon the statute by the agency charged with the responsibility of administering the revenue laws”). What it does mean, however, is that plaintiff cannot claim entitlement to a particular tax treatment on the basis of a ruling issued to another taxpayer. Id. (“petitioners are not entitled to rely upon unpublished private rulings which were not issued specifically to them”). In IBM, that company’s principal competitor, Remington Rand, had been granted the benefit of a favorable tax ruling that exempted certain of its equipment from the business machines excise tax. IBM promptly sought the same treatment and also filed a claim for refund. Several months after issuance of the favorable ruling, the IRS refunded the excise taxes that Remington Rand had paid. In the meantime, however, the IRS had taken no action with respect to IBM’s pending requests. Then, two years later, the IRS decided to revoke, but only prospectively, the favorable ruling it had granted Remington Rand and, at the same time, denied IBM’s request for a refund. As a result, from the date it received a favorable ruling until the date of the ruling’s revocation, Remington Rand was able to market its products free of the business machines excise tax that IBM was required to collect from its customers and that, as a result, had increased the cost of IBM’s equipment. In addressing this situation, the court concluded that the IRS’s failure to relieve IBM of the burden resulting from the unequal imposition of the excise tax was an abuse of the discretion granted the IRS" }, { "docid": "22286914", "title": "", "text": "same fashion that a court, disregarding an erroneous administrative determination in the ordinary refund suit, proceeds to vindicate the requirements of the statute (or regulation). On two occasions (Connecticut Ry. & Lighting Co. v. United States, 135 Ct. Cl. 650, 142 F. Supp. 907 (1956), and Exchange Parts Co. v. United States, 150 Ct. Cl. 538, 279 F. 2d 251 (1960)) this court has allowed recovery of back taxes where the Commissioner of Internal Revenue discriminated against a taxpayer by wrongly applying the retroactive features of a ruling. Those cases involved an invalid distinction between taxpayers who had and those who had not paid the disputed tax, but the broader principle of the decisions is that a refund suit lies for the past period whenever the Service has improperly made its ruling retroactive as to the suing taxpayer. We know of no holding opposed. The numerous cases saying that one taxpayer has no right to rely on an incorrect private ruling to another are irrelevant; they concerned, not the discretion of the Commissioner under Section 7805(b) where the suing taxpayer has himself asked for a ruling, but instances in which the taxpayer simply claimed freedom from the tax on the basis of a private ruling to a separate person. We need not, and do not, depart from that settled principle since we do not decide this case on the ground that IBM had a right to invoke or rely upon Remington’s private ruling of April 1955. We rest on the wholly different basis that IBM, having taken the pains to ask promptly for its own ruling, was entitled to have the Service’s ruling, in response to that request, controlled by the standard of equality and fairness incorporated in Section 7805 (b). Plaintiff’s statutory right to this type of equal protection is not cut off by its omission to prove that it lost business by virtue of the discriminatory treatment. The inequality inheres in the payment of the tax by IBM and its customers while Remington and its customers were allowed to go free. The injury lies in the collection of" }, { "docid": "2923899", "title": "", "text": "under I.R.C. § 7805(b) “to limit retroactive application [of rules and regulations] to the extent necessary to avoid inequitable results.” 343 F.2d at 923 (quoting Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 184, 77 S.Ct. 707, 1 L.Ed.2d 746 (1957)). Consequently, the court ordered that IBM be granted a refund of the excise taxes it had been required to pay during the years Remington Rand had been relieved of the burden of those taxes. In explaining this result, the court was careful to point out that its decision did not intend to signal a departure from the principle, recognized in numerous cases, “that one taxpayer has no right to rely on an incorrect private letter ruling to another.” Id. at 924. Such cases, the court explained, do not implicate the IRS’s failure to exercise its discretion under section 7805(b) in situations where the suing taxpayer had asked for a ruling. Rather, the court observed, they involve “instances in which the taxpayer simply claimed freedom from the tax on the basis of a private ruling to a separate person.” Id. But the situation in IBM, the court noted, was distinguishable — it “rest[ed] on the wholly different basis that IBM, having taken the pains to ask promptly for its own ruling, was entitled to have the Service’s ruling, in response to that request, controlled by the standard of equality and fairness incorporated in Section 7805(b).” Id. FPL can make no similar claim. Having never requested a ruling of its own, plaintiff can hardly now say that the IRS has dealt with it unfairly. In short, plaintiffs reliance on IBM is misplaced. III. Plaintiff’s final argument to support a refund of the heavy use taxes it paid involves the weight of its vehicles. Plaintiff claims that approximately half of its trucks had a gross weight that fell below the taxable threshold of 55,000 pounds. Because no heavy vehicle use tax was owed on these vehicles in the first instance, plaintiff maintains, no tax should have been collected and therefore a refund is now due. Defendant responds by saying that plaintiff" }, { "docid": "22840356", "title": "", "text": "509 ff. (1964). It is plain that Section 7805 (b), embodying these principles, governs plaintiff’s case. The Commissioner’s letter of November 26, 1957, denying the '■request for exemption of Type 604 computers, was a “ruling”, “relating to the internal revenue laws”, to which this Code • provision applied. Plaintiff had sought, by its letter of July 13, 1955,, an “immediate ruling” on the status of the equipment; the Service was asked to “rule on” that question, in light of the fact “that your Office recently ruled that the same types of machines produced by Remington Rand, Inc. are not subject to the Manufacturers’ Excise Tax” (emphasis added). The answer of the Service, in November 1957, referred to the taxpayer’s letter “wherein a ruling is requested relative to the taxability” of the machines, and to IBM’s feeling “that we should issue a specific ruling regarding the taxability of these machines of its manufacture” (emphasis added). The response then goes on to issue such a ruling, negative in character but still a ruling. The operation of Section 7805(b) is not limited, either by its terms or its history, to Service rulings granting exemptions from taxation or acceding to the applicant’s request.- Like a judicial decision adverse to a party, a ruling against the taxpayer is nevertheless a ruling. Similarly, a published ruling is not the only type of “ruling” within Section 7805 (b) ; a private ruling is clearly included in the general category of “any ruling or regulation, relating to the internal revenue laws” (emphasis added). We must thus decide whether the Commissioner of Internal Revenue abused his discretion, under Section 7805(b), when he insisted that, as to this taxpayer, his ruling of November 1957 that the computers were taxable should be retroactive rather than prospective. When we examine the agreed facts, we cannot escape holding that there was a clear abuse, that the circumstances compelled the Service to confine its ruling (when it was finally given) to the future period for which Remington Rand’s computers were to be held taxable. Every material vector, as we gauge them, points to that" }, { "docid": "22286904", "title": "", "text": "provision applied. Plaintiff had sought, by its letter of July 13,1955, an “immediate ruling” on the status of the equipment; the Service was asked to “rule on” that question, in light of the fact “that your Office recently ruled that the same types of machines produced by Remington Rand, Inc. are not subject to the Manufacturers’ Excise Tax” (emphasis added). The answer of the Service, in November 1957, referred to the taxpayer’s letter “wherein a ruling is requested relative to the taxa-bility” of the machines, and to IBM’s feeling “that we should issue a specific ruling regarding the taxability of these machines of its manufacture” (emphasis added). The response then goes on to issue such a ruling, negative in character but still a ruling. The operation of Section 7805(b) is not limited, either by its terms or its history, to Service rulings granting exemptions from taxation or acceding to the applicant’s request. Like a judicial decision adverse to a party, a ruling against the taxpayer is nevertheless a ruling. Similarly, a published ruling is not the only type of “ruling” within Section 7805 (b); a private ruling is clearly included in the general category of “any ruling or regulation, relating to the internal revenue laws” (emphasis added). We must thus decide whether the Commissioner of Internal Revenue abused his discretion, under Section 7805(b), when he insisted that, as to this taxpayer, his ruling of November 1957 that the computers were taxable should be retroactive rather than prospective. When we examine the agreed facts, we cannot escape holding that there was a clear abuse, that the circumstances compelled the Service to confine its ruling (when it was finally given) to the future period for which Remington Rand’s computers were to be held taxable. Every material vector, as we gauge them, points to that resolution. Here were the two competitors in the field of large electronic computing systems. The ten percent “business ma- on purchaser or lessee, was obviously a significant element in sales and leases. Prior to April 1955, both companies paid that tax. Bemington obtained an exemption in the middle" }, { "docid": "22286928", "title": "", "text": "Against the United States in Federal Tax Controversies, 19 Tax L. Rev. 487, 508 (1964). As stated above, plaintiff did not show that it closed any transactions in reliance on the private ruling given to Remington Rand, or that it suffered any competitive disadvantage as a result of the ruling. At a pretrial conference held before our trial commissioner (para. 16 Commissioner’s Memorandum of Pretrial Conference) defendant put plaintiff on notice that if its right to recover was predicated' upon an alleged competitive disadvantage inflicted upon it by the Commissioner of Internal Revenue, plaintiff could support its claim only by producing evidence of sales opportunities lost because excise taxes were imposed on its machines but not upon those of Remington Rand. Plaintiff did not offer any proof on the point. Also, plaintiff did not absorb any of the excise taxes on the machines sold or leased to its customers. In a series of decisions by the First Circuit, the Third Circuit and the Tax Court, the courts were faced with actions by (taxpayers, who had not received private rulings from' the Internal Revenue Service. They argued that when the Commissioner revoked a previous letter ruling issued to another taxpayer, the retroactive application of that change in position as to them constituted a discriminatory abuse of the discretion granted by Section 7805(b)- or its predecessor. Insofar as taxability was concerned, the situation of these taxpayers was the same or similar to that of the taxpayer who had received the ruling, and it was shown or assumed that the plaintiffs in each case had relied on the previous rulings. Weller v. Commissioner, 270 F. 2d 294 (3d Cir. 1959), cert. denied, 364 U.S. 908; Estate of Bennett v. Commissioner, P.H. Memo. T.C. Para. 60253 (1960); Gerstell v. Commissioner, P.H. Memo. T.C. Para. 62181 (1962), Aff'd 319 F. 2d 131 (3d Cir. 1963); Goodstein v. Commissioner, 267 F. 2d 127 (1st Cir. 1959). In each case, the court held that the issuance of a ruling to a particular taxpayer was a sufficient basis for the Commissioner, in the exercise of his discretion, to" } ]

[ { "docid": "22657509", "title": "", "text": "satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong. The issue becomes somewhat more complicated where, as here, the district court dismisses the petition based on procedural grounds. We hold as follows: When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. This construction gives meaning to Congress’ requirement that a prisoner demonstrate substantial underlying constitutional claims and is in conformity with the meaning of the “substantial showing” standard provided in Barefoot, supra, at 893, and n. 4, and adopted by Congress in AEDPA. Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further. In such a circumstance, no appeal would be warranted. Determining whether a COA should issue where the petition was dismissed on procedural grounds has two compo nents, one directed at the underlying constitutional claims and one directed at the district court’s procedural holding. Section 2253 mandates that both showings be made before the court of appeals may entertain the appeal. Each component of the § 2253(c) showing is part of a threshold inquiry, and a court may find that it can dispose of the application in a fair and prompt manner if it proceeds first to resolve the issue whose answer is more apparent from the record and arguments. The recognition that 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,” Ashwander" } ]

[ { "docid": "21875451", "title": "", "text": "AEDPA, a petitioner must obtain a COA before he can appeal the district court’s denial of habeas relief. See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[Ujntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the District Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable amongst jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. Where the district court has denied claims on procedural grounds, a COA should issue only if it is demonstrated that “jurists of reason would find it debatable whether the petition states a valid claim of a denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Miller-El, 537 U.S. at 342, 123 S.Ct. 1029. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Moreover, “[b]ecause" }, { "docid": "23197596", "title": "", "text": "must first decide whether to grant a COA before one can be requested here. As noted, the district court denied a COA for the claim Foster seeks to appeal here. Obtaining a COA requires “a substantial showing of the denial of a constitutional right”. 28 U.S.C. § 2253(c)(2); e.g., Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack, 529 U.S. at 483, 120 S.Ct. 1595. For that requisite showing, an applicant usually must demonstrate “reasonable jurists could debate whether (or, for that matter, agree that) the [federal-habeas] petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further’ ”. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (quoting Slack, 529 U.S. at 484, 120 S.Ct. 1595). Where, as here, the district court’s habeas denial includes a procedural ruling, as opposed to one on the underlying constitutional claim, the showing is expanded. See Hall v. Cain, 216 F.3d 518, 521 (5th Cir.2000). In that situation, the applicant must show jurists of reason would find debatable whether: the habeas petition states a valid claim of the denial of a constitutional right; and the district court’s procedural ruling was correct. Id. In determining whether to grant a COA, this court is, inter alia, limited “to a threshold inquiry into the underlying merit of [Foster’s] claims”. Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims.” Id. at 336, 123 S.Ct. 1029. Instead, the court must make “an overview of the claims in the habeas petition and a general assessment of their merits”. Id. Because Foster was convicted of capital murder and received the death penalty, “any doubts as to whether a COA should issue must be resolved in [his] favor”. Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000), cert. denied, 531 U.S. 966, 121 S.Ct. 400, 148 L.Ed.2d 308 (2000). For purposes of the mandated threshold inquiry, we recognize that, in ruling on the merits, the district" }, { "docid": "17393630", "title": "", "text": "28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“Before an appeal may be entertained, a prisoner who was denied habeas relief in the district court must first seek and obtain a COA from a circuit justice or judge.... 28 U.S.C. § 2253(c) permits the issuance of a COA only [upon] a ‘substantial showing of the denial of a constitutional right.’ ”); see also Adams v. LeMaster, 223 F.3d 1177, 1179 (10th Cir.2000) (“[W]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a [COA] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000))). The COA we previously issued is confined to the statutory issue of the retro-activity of Chambers. Nevertheless, circuit courts, including our own, have recognized that they possess the authority to expand the COA to cover uncertified, underlying constitutional claims asserted by an appellant. See e.g., Adams, 223 F.3d at 1179-80 (expanding COA containing only procedural questions to include the underlying constitutional issue); see also Villot v. Varner, 373 F.3d 327, 337 n. 13 (3d Cir.2004) (exercising discretion to sua sponte expand the scope of the certificate of appealability granted by motions panel, citing 3d Cir. LAR 22.1(b)); Valerio v. Crawford, 306 F.3d 742, 764 (9th Cir.2002) (“Although neither AEDPA nor [Fed. R.App. P. 22] specifically so provides, a court of appeals not only has the power to grant a COA where the district court has denied it as to all issues, but also to expand a COA to include additional issues when the district court has granted a COA as to some but not all issues.”); Nardi v. Stewart, 354 F.3d 1134, 1136-40 (9th Cir.2004) (expanding a COA to include a claim that" }, { "docid": "18491602", "title": "", "text": "denial of habeas relief. See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[Ujntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). As the Supreme Court has explained: The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of them merits. We look to the District Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable among jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029 (citation omitted). “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 123 S.Ct. 1029. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the ease has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Moreover, “[b]eeause the present case involves the death penalty, any doubts as to whether a COA should issue must be resolved in [petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000) (citation omitted). III. SUPPRESSION OF EVIDENCE Avila contends that the State failed to disclose certain evidence in viola tion of his due process rights. The district court granted a COA as to this issue. The State has a duty to disclose evidence favorable to the accused that is material to guilt" }, { "docid": "13139588", "title": "", "text": "only in the event that it found that he actually attacked Vick. The court did not instruct the jury on a law of the parties theory of liability. The jury found Wright guilty, and he was sentenced to death. Wright’s conviction was affirmed on direct appeal to the Texas Court of Criminal Appeals (“TCCA”). Wright v. State, 28 S.W.3d 526 (Tex.Crim.App.2000). He petitioned the state court for a writ of habeas corpus. The state trial judge adopted the State’s proposed findings of fact and conclusions of law in their entirety and recommended that relief be denied. The TCCA adopted the trial court’s findings of fact and conclusions of law and denied relief. Wright petitioned the United States District Court for the Northern District of Texas for a federal writ of habeas corpus. A magistrate judge recommended denying relief on all of Wright’s claims. Wright v. Dretke, 3:01-CV-0472, 2004 WL 438941 (N.D.Tex. Mar.10, 2004). The district court judge adopted the magistrate judge’s recommendation and denied the petition. II We issue a certificate of appealability only when the movant has made “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(e)(2). This requires him to “demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). At this stage, we are not permitted to give full consideration of the factual or legal bases in support of the claim. Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Instead, we merely conduct an overview of the claims and a general assessment of their merits. Id. The movant’s arguments “must be assessed under the deferential standard required by 28 U.S.C. § 2254(d)(1).” Tennard v. Dretke, 542 U.S. 274, 282, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004); see Miller-El, 537 U.S. at 348-50, 123 S.Ct. 1029 (Scalia, J., concurring) (arguing that a court must consider 28 U.S.C. § 2254(d)’s deferential standard of review when ruling on motion for COA). A federal court may not issue a" }, { "docid": "18025546", "title": "", "text": "sentence. Accordingly, the trial court sentenced Trottie to death. The Texas Court of Criminal Appeals affirmed Trottie’s conviction and sentence. Trottie v. State, No. 71,693 (Tex.Crim.App. Sept. 20, 1995). Trottie filed a petition for writ of habeas corpus in the state court in 1997. In 2008, the trial court submitted findings of fact and conclusions of law recommending a denial of habeas relief, which the Texas Court of Criminal Appeals adopted in 2009. Ex Parte Trottie, No. 70,302-01 (Tex.Crim.App. Feb. 11, 2009). Trottie then sought federal habeas relief, which the district court denied in 2011. See Trottie, 2011 WL 4591975, at *1, 20. Trottie now seeks a COA. STANDARD OF REVIEW The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs Trottie’s habeas petition. Under AEDPA, a state court prisoner must obtain a certificate of appealability (“COA”) before he can appeal a federal district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1)(A). A COA is warranted upon a “substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). A petitioner satisfies this standard if “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). The issue is “the debatability of the underlying constitutional claim, not the resolution of that debate.” Miller-El, 537 U.S. at 342, 123 S.Ct. 1029. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Id. at 336,123 S.Ct. 1029. In cases involving the death penalty, “any doubts as to whether a COA should issue must be resolved in [the petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000) (citation omitted). We evaluate the debatability of Trottie’s constitutional claims under AED-PA’s highly deferential standard, which “demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010) (citations" }, { "docid": "18491601", "title": "", "text": "or (2) “resulted in a decision that 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). A state court’s decision is deemed contrary to clearly established federal law if it reaches a legal conclusion in direct conflict with a prior decision of the Supreme Court or if it reaches a different conclusion than the Supreme Court based on materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 404-08, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court’s decision constitutes an unreasonable application of clearly established federal law if it is “objectively unreasonable.” Id. at 409, 120 S.Ct. 1495. Further, pursuant to section 2254(e)(1), state court findings of fact are presumed to be correct, and the petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. See Valdez v. Cockrell, 274 F.3d 941, 947 (5th Cir.2001). Additionally, under AEDPA, a petitioner must obtain a Certificate of Appealability (COA) before he can appeal the district court’s denial of habeas relief. See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[Ujntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). As the Supreme Court has explained: The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of them merits. We look to the District Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable among jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s" }, { "docid": "15107164", "title": "", "text": "Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Johnny William Cooper, Jr., seeks to appeal the district court’s order denying his Fed. R. Civ. P. 60(d)(3) motion seeking relief from the district court’s order denying Cooper’s 28 U.S.C. § 2255 (2012) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the motion states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595. We have independently reviewed the record and conclude that Cooper has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED" }, { "docid": "13109965", "title": "", "text": "Bagwell appealed the denial of the COA on two of his habeas claims to this court. II. STANDARD OF REVIEW Bagwell’s § 2254 habeas petition is subject to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 1918, 150 L.Ed.2d 9 (2001). AEDPA requires Bagwell obtain a COA before he can appeal the district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1) (2000). Hence, “until a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). A COA will issue only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000); Miller-El, 537 U.S. at 336, 123 S.Ct. at 1039. More specifically, the petitioner must demonstrate that “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000). Likewise, when the district court has rejected a claim on a procedural ground, “the petitioner must also demonstrate that ‘jurists of reason would find it debatable whether the district court was correct in the procedural ruling.’ ” Henry v. Cockrell, 327 F.3d 429, 431 (5th Cir.2003) (quoting Slack, 529 U.S. at 484, 120 S.Ct. at 1604). The Supreme Court counseled that “a COA ruling is not the occasion for a ruling on the merit of petitioner’s claim[.]” Id. at 331, 123 S.Ct. 1029. Instead, this court should engage in an “overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 336, 123 S.Ct. 1029. “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Ultimately, “[t]o prevail on a petition for writ of habeas corpus, a petitioner must demonstrate that the state" }, { "docid": "1635855", "title": "", "text": "were affirmed on direct appeal by the Texas Court of Criminal Appeals (CCA). Ward v. State, No. AP-75750, 2010 WL 454980, at *1 (Tex. Crim.App. Feb. 10, 2010). While his direct appeal was pending, Ward sought state habeas relief. The state trial court issued a report and findings recommending denial of habeas relief without an evidentiary hearing. Ex parte Ward, No. WR-70651-02, 2010 WL 3910075, at *1 (Tex.Crim. App. Oct. 6, 2010). The CCA adopted the trial,-judge’s findings and conclusions in part, and denied Ward’s habeas petition in an unpublished decision. Id. One year later, Ward filed the instant federal habeas corpus petition in federal district court. Ward asserted five federal claims for habeas relief. The district court denied his petition in its entirety and denied his request for a certificate of appeal-ability. Ward now seeks our permission to appeal three of the five claims that the district court rejected. II. JURISDICTION AND STANDARD OF REVIEW To appeal the district court’s denial of his habeas petition, Ward must first obtain a COA pursuant to 28 U.S.C. § 2253(c)(1). See Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Because the district court did not grant a COA on any of Ward’s claims, we have jurisdiction at this juncture only to consider whether a COA should issue, and not the ultimate merits of his claims. E.g., 28 U.S.C. § 2253(c); Miller-El, 537 U.S. at 335-36, 123 S.Ct. 1029. A COA may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists. could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. Specifically, “the petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Feldman v. Thaler, 695 F.3d 372, 377 (5th Cir.2012) (alteration omitted) (quoting Slack v. McDaniel, 529 U.S." }, { "docid": "10202291", "title": "", "text": "PER CURIAM: Charles Hensley Mitchell, II, Texas prisoner # 1851936, moves for a certificate of appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition, which challenged his conviction of aggravated assault with a deadly weapon. He also seeks a COA to appeal the district court’s postjudgment denials of his motion for an evidentiary hearing and his motion to alter or amend the judgment under Federal Rules of Civil Procedure 59(e). The district court denied a COA when it denied Mitchell’s § 2254 petition, but it did not address the need for a COA in connection with the post-judgment rulings. To obtain a COA, a § 2254 petitioner must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). This means that for Mitchell’s claims of prosecutorial misconduct and ineffective assistance of appellate counsel, which the district court denied on the merits, Mitchell must “demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). He fails to make such a showing. Mitchell also challenges the district court’s finding that he procedurally defaulted his claim that the state trial court’s refusal to give the jury an instruction on self-defense violated due process, but he fails to show “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. Also, Mitchell fails to show that reasonable jurists could debate whether, or agree that, his challenge to the denial of his motion for partial summary judgment is “adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (internal quotation marks and citation omitted). Mitchell fails to brief, and thus waived, his claims of ineffective assistance of trial counsel. Hughes v. Johnson, 191 F.3d 607, 612-13 (5th Cir. 1999). With respect to these claims, we DENY a COA. A COA is required to" }, { "docid": "9579645", "title": "", "text": "of the Confrontation Clause.”) (citations omitted). Accordingly, the petition for habeas relief based on a Sixth Amendment violation is denied. D. As to a Certificate of Appealability Rule 22(b) of the Federal Rules of Appellate Procedure provides that “[i]n a ha-beas corpus proceeding in which the detention complained of arises from process issued by a state court ... the applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c).” Section 2253(c) provides that “[a] certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A “substantial showing” does not require that a petitioner demonstrate that he would prevail on the merits in his appeal, but only that the issues he raises are debatable among jurists of reason; that a court could resolve the issues differently; or that the questions are adequate to deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003), Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3395, 77 L.Ed.2d 1090 (1983); Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 112 (2d Cir.2000). In the Court’s view, the petitioner has satisfied his burden for a certificate of appealability with regard to the issue of whether New York’s depraved indifference murder statute is unconstitutionally vague. This question is debatable among jurists of reason, as evidenced by the dissents of former Court of Appeals Judges Jasen, Bellacosa, and Rosenblatt, and the opinions of Judge Brieant in the Southern District of New York. Also, the question is one which should receive further review. The Second Circuit has not yet addressed whether New York’s depraved indifference murder statute, on its face or as interpreted, violates the Constitution. On two occasions, the Court found that the question was not properly exhausted and procedurally barred, and the petitioners failed to show either “cause and prejudice” or that they were actually innocent. See St. Helen v. Senkowski" }, { "docid": "11755177", "title": "", "text": "to the procedures imposed by the AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under the AEDPA, a petitioner must obtain a COA before an appeal can be taken to this Court. See 28 U.S.C.A. § 2253(c)(2) (West 2003); see also Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[U]ntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). “[W]hen a habeas applicant seeks permission to initiate appellate review of the dismissal of his petition, the court of appeals should limit its examination to a threshold inquiry into the underlying merit of his claims.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Id. at 336, 123 S.Ct. 1029. A COA will be granted if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C.A. § 2253(c)(2) (West 2003). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 123 S.Ct. 1029. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will riot prevail.” Id. at 338, 123 S.Ct. 1029. Finally, “[bjecause the present case involves the death penalty, any doubts as to whether a COA should issue must be resolved in [Petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000). We note that under the AEDPA, federal courts are to give a level of deference to state court findings per §§ 2254(d)(2) and (e)(1). At the" }, { "docid": "1635856", "title": "", "text": "U.S.C. § 2253(c)(1). See Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Because the district court did not grant a COA on any of Ward’s claims, we have jurisdiction at this juncture only to consider whether a COA should issue, and not the ultimate merits of his claims. E.g., 28 U.S.C. § 2253(c); Miller-El, 537 U.S. at 335-36, 123 S.Ct. 1029. A COA may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists. could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. Specifically, “the petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Feldman v. Thaler, 695 F.3d 372, 377 (5th Cir.2012) (alteration omitted) (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). The issue is “the debatability of the underlying constitutional claim, not the resolution of that debate.” Miller-El, 537 U.S. at 342, 123 S.Ct. 1029. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Thus, this Court’s examination is a “threshold inquiry [that] does not require full consideration of the factual or legal bases adduced in support of the claims,” but rather “an overview of the claims in' the habeas petition and a general assessment of their merits.” Id. at 336, 123 S.Ct. 1029. In death-penalty cases, “any doubts as to whether the COA should issue are resolved in favor of the petitioner.” Moore v. Quarterman, 534 F.3d 454, 460 (5th Cir.2008). “[T]he determination of whether a COA should issue must be made by viewing the petitioner’s arguments through the lens of the deferential scheme laid out in" }, { "docid": "5215502", "title": "", "text": "2011 WL 4826968 (Tex.Crim. App. Oct. 12, 2011). Garza filed his amended federal habeas petition in 2012, which the district court denied. Garza v. Thaler, 909 F.Supp.2d 578, 691 (W.D.Tex.2012). The district court also denied Garza a COA. Id. Garza now requests a COA from this court. II. The AEDPA governs our consideration of Garza’s request for a COA. Under the AEDPA, a state habeas petitioner must obtain a COA before he can appeal the federal district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1)(A); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (describing a COA as a jurisdictional prerequisite without which federal courts of appeals lack jurisdiction to rule on the merits of the appeals from habeas petitioners). A COA is warranted upon a substantial showing of the denial of a constitutional right. § 2253(c)(2). A petitioner satisfies this standard if reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). To obtain a COA when the district court has denied relief on procedural grounds, such as procedural default, a petitioner must show both a debatable claim on the merits and that the district court’s procedural ruling is debatable. See id. at 484-85, 120 S.Ct. 1595. The issue is the debatability of the underlying constitutional claim, not the resolution of the debate. Miller-El, 537 U.S. at 342, 123 S.Ct. 1029; see id. at 338, 123 S.Ct. 1029 ([A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail). This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Id. at 336, 123 S.Ct. 1029. In cases involving the death penalty, any doubts as to whether a COA shoúld issue must be resolved in [the petitioner’s] favor. Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000). We" }, { "docid": "22571850", "title": "", "text": "Allen asserted these as separate claims for relief in his second habeas petition and supporting memorandum of points and authorities filed in the district court. In addition, Allen specifically relied upon Lackey in the district court. Justice Stevens’ concurrence in Lackey makes no reference to age or infirmity, but only to tenure. Because each claim now occupies a distinct procedural sphere, we analyze them independently from that perspective as well. II. CERTIFICATE OF APPEALABILITY ON ALLEN’S AGE AND PHYSICAL INFIRMITY CLAIM Having been denied a certificate of appealability on his age and physical infirmity claim by the district court, Allen asks us to certify this claim, as he must secure a certificate of appealability before he can proceed with the merits of his claims. See 28 U.S.C. § 2253(c)(1); 9th Cir. R. 22-1; see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). A petitioner must make “a substantial showing of the denial of a constitutional right” to warrant a certificate of appeal-ability. 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at 484, 120 S.Ct. 1595; see also Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). To meet this “threshold inquiry,” Slack, 529 U.S. at 482, 120 S.Ct. 1595, the petitioner “ ‘must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.’ ” Lam-bright, 220 F.3d at 1025(alteration and emphasis in original) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (internal quotation marks omitted)). Even if a question is well settled in our circuit, a constitutional claim is debatable if another circuit has issued a conflicting ruling. See id. at 1025-26. “[T]he showing a petitioner must make to be heard on appeal is less" }, { "docid": "22327724", "title": "", "text": "3, 2005. Because the petition was signed on October 31, 2005, the district court deemed it filed on that date pursuant to the prisoner mailbox rule. Fed. R.App. P. 4(c). Certificate of Appealability A COA is a jurisdictional prerequisite to our review. Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). We will issue a COA only if Clark makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing, he must establish that “reasonable jurists could debate whether ... the petition should have been resolved [by the district court] in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quotations omitted). Insofar as the district court dismissed Clark’s habeas petition on procedural grounds, Clark must demonstrate both that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. “Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude ei ther that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further.” Id. We review the district court’s factual findings for clear error and its legal conclusions de novo. English v. Cody, 241 F.3d 1279, 1282 (10th Cir.2001). Because Clark’s petition was filed on October 31, 2005, almost two years after his conviction became final, his petition is untimely absent statutory or equitable tolling. Clark claims statutory tolling. Section 2244(d)(1)(B) allows the limitation period to begin as of “the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action.” Clark claims this provision" }, { "docid": "9442958", "title": "", "text": "appeals first issues a COA. 28 U.S.C. § 2253(c)(1) (2004); Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (describing a COA as a “jurisdictional prerequisite” without which “federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners”); Neville v. Dretke, 423 F.3d 474, 478 (5th Cir.2005). In determining whether to grant a petitioner’s request for a COA, the Supreme Court has instructed that a “court of appeals should limit its examination to a threshold inquiry into the underlying merit of his claims.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029 (citing Slack v. McDaniel, 529 U.S. 473, 481, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Id. at 336, 123 S.Ct. 1029. A COA mil be granted “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2004). In order to meet this standard, Pippin must demonstrate that “jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029 (citing Slack, 529 U.S. at 484, 120 S.Ct. 1595). “The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 336, 123 S.Ct. 1029. Although the issuance of a COA “must not be pro forma or a matter of course,” the petitioner satisfies the burden under § 2253(c) by “demonstrating] that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Id. at 337-38, 123 S.Ct. 1029. “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Finally, any doubt as" }, { "docid": "810364", "title": "", "text": "of Criminal Procedure article 37.071, as amended effective September 1, 1991, is unconstitutional. II. Legal Standard Our review of Sonnier’s request for a COA is governed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”), which provides that a petitioner can appeal a district court’s dismissal of a petition under 28 U.S.C. § 2251 only if either the district court or this court issues a COA. See 28 U.S.C. § 2253(c)(1); Fed. R.App. P. 22(b)(1). A court can issue a COA “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Supreme Court has explained that under this standard, a COA should issue, only when the petitioner demonstrates “that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Thus, a petitioner seeking a COA must show that “ ‘reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.’ ” Id. at 338, 123 S.Ct. 1029 (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). When determining whether a petitioner has established an entitlement to a COA, we do not fully consider the underlying factual and legal bases in support of the petitioner’s claims. Id. at 336, 123 S.Ct. 1029. Rather, this court conducts only a limited, “threshold inquiry into the underlying merit of [the petitioner’s] claims.” Id. at 327,123 .S.Ct. 1029. Finally, in capital cases, doubts over whether a COA should issue are to be resolved in favor of the petitioner. See Newton v. Dretke, 371 F.3d 250, 254 (5th Cir.2004). III. Discussion A. Ineffective Assistance of Counsel Sonnier first asserts that he is entitled to a COA because his trial counsel, Wilford Anderson and Stephen Morris, were ineffective during the punishment phase of his trial for failing to: (1) investigate for mitigating evidence; and (2) present known available mitigating evidence. The Sixth" }, { "docid": "19629258", "title": "", "text": "Welch never claimed that the residual clause was unconstitutionally vague in his § 2255 motion, let alone that Johnson applies retroactively. Accordingly, courts below addressed neither issue. Indeed, Johnson was not even decided when the courts below issued their rulings. Those deficiencies should preclude us from deciding in this case whether Johnson is retroactive. Our role in reviewing the denial of a certificate of appealability is far more circumscribed than normal appellate review. The text of 28 U.S.C. § 2253 confirms this. Defendants can appeal their convictions and sentences as a matter of right on direct review, but § 2253 deprives courts of appeals of jurisdiction to review the denial of a petitioner's motion for federal postconviction relief unless he obtains a \"certificate of appealability.\" § 2253(c)(1). And he can obtain that certificate only if he makes \"a substantial showing of the denial of a constitutional right.\" § 2253(c)(2) ; see Miller-El v. Cockrell, 537 U.S. 322, 335-336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Accordingly, this Court has instructed that review of the denial of a certificate of appealability is a retrospective inquiry into whether the movant's claims, as litigated in the district court, warrant further proceedings-not whether there is any conceivable basis upon which the movant could prevail. Courts must ask whether \"reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.\" Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (emphasis added). They are to \"look to the District Court's application of [the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) ] to petitioner's constitutional claims and ask whether that resolution was debatable.\" Miller-El, supra, at 336, 123 S.Ct. 1029 (emphasis added). Until today, we did not require courts of appeals to consider all possible constitutional issues that might warrant relief as part of this inquiry. Those courts instead looked to how the movant framed his case in his motion to vacate. Even if, for example, a district court denies habeas relief based on procedural default and never reached the merits, the movant must establish not" } ]

[ { "docid": "9812622", "title": "", "text": "the Department ordered a fifteen day suspension of plaintiffs liquor, license. 4. Plaintiffs did not file an appeal from the Department’s decision to the Alcoholic Beverage Control Appeals Board (Appeals Board). 5. Plaintiffs petitioned the Department to make an offer in compromise pursuant to California Business and Professions Code section 23095. The Department denied said petition. 6. Plaintiffs filed an appeal from the Department’s decision denying their petition. By decision filed November 19, 1979, the Appeals Board dismissed said appeal for lack of jurisdiction. 7. Plaintiffs filed a petition for writ of review in the Court of Appeal of the State of California which was denied on or about January 18, 1980. Plaintiffs then filed a petition for hearing in the California Supreme Court which was also denied. CONCLUSIONS OF LAW 1. Plaintiffs had a full factual hearing before the Department and Appeals Board. Said agencies have quasi-judicial powers under state law. 2. The decisions of the department and the Appeals Board are res judicata; accordingly, this court is without jurisdiction over the subject matter of plaintiffs’ complaint. (Francisco Enterprises, Inc. v. Kirby (9th Cir. 1973) 482 F.2d 481.) 3. California Business and Professions Code section 23090.5 provides plaintiffs with the right to judicial review. 4. Neither Article III section 3.5 of the California Constitution nor California Business and Professions Code section 23090.5 preclude state courts from determining constitutional issues arising from administrative discipline of plaintiffs liquor license, regardless of whether the Department or the Appeals Board has jurisdiction to determine said issues. 5. The state constitution, statutes and administrative procedures under which plaintiffs’ liquor license is suspended do not violate due process of law. 6. Plaintiffs have failed to state a claim for relief cognizable under 42 United States Code, section 1983. 7. Plaintiffs are denied a preliminary injunction and/or permanent injunction, and the complaint is dismissed." } ]

[ { "docid": "7833883", "title": "", "text": "a determination that the enforcement of such statute is prohibited by federal law or federal regulations. Cal.Const. Art. 3, § 3.5. . The authority of California state courts to consider constitutional claims, notwithstanding Section 3.5, is indicated by the language in Section 3.5(a) & (c), “unless an appellate court has made a determination that the enforcement of such statute is unconstitutional,” Section 3.5(a), or “is prohibited by federal law or federal regulations,” Section 3.5(c). Generally, an appellate court will consider issues only after they have been addressed by the trial court. . In Goldin v. Public Utilities Commission, the California Supreme Court stated that “Section 3.5 places restraints on administrative agencies relative to their refusal to enforce statutes on constitutional grounds; it does not affect their enforcement of their own rules or their competence to examine evidence before them in light of constitutional standards.” 23 Cal.3d 638, 688 n.18, 153 Cal.Rptr. 802, 822 n.18, 592 P.2d 289, 309 n.18 (1979). . It is unclear from the record on appeal on what grounds the district court treated the Board Members’ motion to dismiss as one for summary judgment under Rule 56. Perhaps the court considered such treatment appropriate because it accepted and considered matters submitted outside the pleadings. However, matters outside the pleadings related to the issue of subject matter jurisdiction can be considered on a motion to dismiss for lack of jurisdiction. See 5, C. Wright & A. Miller, Federal Practice and Procedure § 1350 at 549-554 (1969). . With respect to the EMI records demanded by the FTB, the interests of the two corporations are not identical. Capitol claims that it lacks access to the records, which it needs in order to succeed in its state administrative and judicial proceedings. EMI argues that its disclosure of some of the records would violate the Official Secrets Act of the United Kingdom, disclosure of other records is unwarranted because EMI is not within the taxing jurisdiction of California, and, if the records are not made available, it will be indirectly harmed by the additional tax assessment against its subsidiary. In addition," }, { "docid": "7833889", "title": "", "text": "officials of the state and board. . The Board Members argue that if Section 1341 or the Eleventh Amendment is not a bar to Case No. 80-4114, the federal courts should abstain from ruling on the issues presented by EMI. The Board Members rely substantially on Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) (abstention is appropriate where federal jurisdiction is invoked for purposes of restraining the collection of state taxes. There is little doubt that the California courts will uphold the unitary tax scheme generally as authorized by state statute. See, e.g., Edison California Stores, Inc. v. McColgan, 30 Cal.2d 472, 183 P.2d 16 (1974). It is unclear, however, whether the California courts would uphold the application of the unitary method in the present case. Compare Chase Brass and Copper Co. v. Franchise Tax Board, 10 Cal.App.3d 496, 95 Cal.Rptr. 805 (1970) (application of unitary method to foreign operations overruled) with Firestone Tire & Rubber Co. v. Franchise Tax Board, Los Angeles Superior Court (No. 31243 1980) (application of unitary tax method to foreign operations upheld). It may be desirable to allow the state courts to rule on the applicability of its unitary method in this case before the federal courts consider the constitutional issues presented. In view of this Court’s ruling that EMI does not have an adequate remedy in state court, however, it would be inappropriate to dismiss Case No. 80-4114 on abstention grounds. Nevertheless, the considerations relevant to the abstention argument may also be relevant to the issue of whether Case No. 80-4114 should be stayed pending a determination of Capitol’s claims in state court. . Subsequent to oral argument on appeal, Capitol and EMI moved to stay the proposed assessment, pursuant to Fed.R.App.P. 27(b), pending a final determination of these cases by this Court or by the district court on remand. In view of our ruling with respect to Case No. 80 — 4113, the motion to stay is moot as to that case. Whether the proposed assessment should be stayed with respect to Case" }, { "docid": "7833856", "title": "", "text": "309 n.18 (1979). Therefore, constitutional challenges to tax assessments may be raised in the California courts. However, as stated above, in order to obtain state court review of constitutional challenges, a taxpayer must first exhaust its administrative remedies. Capitol argues that, under California law, its inability to provide the Board with certain evidence controlled by EMI will constitute a failure to exhaust, thus precluding state court review of the constitutional issues raised in this case. Capitol bases this argument on Barnes, 118 Cal.App.3d 994, 173 Cal.Rptr. 742. In Barnes, the plaintiff brought a declaratory action in Superior Court alleging that the Board had wrongfully denied his claim for a refund of a tax overpayment and challenging the constitutionality of certain tax statutes and regulations. The district court granted the Board’s motion for summary judgment on the ground that the plaintiff’s refusal to provide the Board with documentation for his claim of overpayment constituted a failure to exhaust his administrative remedies. The granting of summary judgment was affirmed on appeal. Barnes is clearly distinguishable from the present case. In Barnes, the plaintiff refused to provide the Board with evidence admittedly in his possession. As the court in Barnes explained, “[t]he doctrine of exhaustion ... requires a party to use all available agency administrative procedures for relief and to proceed to a final decision on the merits by the agency before he may resort to the courts.” 118 Cal.App.3d at 1001, 173 Cal.Rptr. at 746. The purpose of the exhaustion doctrine is to give the Board “the opportunity to rectify any mistake in tax collection.” Id. As the Barnes court recognized, a taxpayer could frustrate this policy if he were allowed to withhold from the Board evidence in his possession and then seek state court review. In contrast, Capitol asserts that it cannot produce certain evidence possessed by another corporation. The exhaustion doctrine, as applied in Barnes, requires that the taxpayer do all he can to prevail in the administrative proceedings; it does not require that he do the impossible. If Capitol has provided the Board with all evidence within its control" }, { "docid": "5311984", "title": "", "text": "§§ 1391, 1397. This process allows the State of California to determine for itself how to enforce most effectively the Knox-Keene Act and to promote the interests of the State consistent with other state and federal laws. 3. Delta had an adequate opportunity to, and did in fact, raise its federal ERISA defense in the state administrative proceedings. By doing so, Delta preserved this issue for review in the California state courts. As noted, administrative proceedings brought pursuant to the Knox-Keene Act are governed by the California Administrative Procedure Act (CAPA). Cal. Health & Safety Code § 1397. After requesting an administrative hearing, the CAPA requires respondents to file a notice of defense, and permits them to “present [any] new matter by way of defense.” Cal. Gov’t Code § 11506(a)(5). This provided Delta ample opportunity to raise both state and federal defenses, including its ERISA preemption claim in the administrative hearing. See, e.g., Takahashi v. Board of Trustees of Livingston Union Sch. Dist., 783 F.2d 848, 852 (9th Cir.1986) (interpreting § 11506(a)(5) and holding that plaintiff could have raised her federal constitutional claims in the state administrative hearing). Delta avers that it “likely could not have raised a defense” based on ERISA preemption in the administrative hearings. Although Delta does not elaborate, it might be referring to section 3.5 of the California Constitution which precludes administrative agencies from declaring a state statute unenforceable on the basis that federal law prohibits the enforcement of that statute. Cal. Const. Art. III, § 3.5; Southern Pacific Transp. Co. v. Public Utilities Comm’n of California, 716 F.2d 1285, 1290-91 (9th Cir.1983). This provision, however, does not prevent a party from raising the issue to the administrative agency in order to preserve the issue for review in the California state courts. See Southern Pacific, 716 F.2d at 1291. The record demonstrates that Delta raised and preserved the ERISA preemption issue in the administrative hearings. On March 15, 1996, Delta filed a Preconference Statement with the administrative law judge. In that statement Delta noted that a federal district court had already found that the Commissioner’s Order" }, { "docid": "7833854", "title": "", "text": "if Capitol were afforded an immediate trial in federal court, presumably, the same records would still be unavailable. Finally, Capitol argues that its remedy in state court is inadequate because it is uncertain whether the state courts can consider constitutional challenges to the proposed tax assessment. A state remedy is adequate only where it is certain that the taxpayer can raise constitutional claims in the state court. See fully, 429 U.S. at 73, 97 S.Ct. at 222 (federal district court is under equitable duty to refrain from interfering with a state’s collection except where “an asserted federal right might otherwise be lost”); cf. Atlantic Coast Line, 262 U.S. 413, 43 S.Ct. 620, 67 L.Ed. 1051 (state remedy inadequate where there was uncertainty as to state court’s limitations on such a remedy). The California Constitution prevents a state administrative agency from passing on constitutional questions. Art. 3, Sec. 3.5. Capitol suggests that because constitutional questions cannot be determined by the FTB or State Board of Equalization, the state court will not pass on such questions in a subsequent court action. Although there is little case law interpreting Section 3.5, it is clear that the section does not preclude a taxpayer from raising constitutional claims in subsequent judicial actions. See, e.g., Japan Lines, Ltd. v. County of Los Angeles, 441 U.S. 434, 99 S.Ct. 1813, 60 L.Ed.2d 336 (1979) (California Superior Court ruled on the constitutionality of ad valorem tax application in refund action); cf. Fenske v. Public Employment Retirement System (P.E.R.S.) Board of Ad ministration, 103 Cal.App.3d 590, 163 Cal.Rptr. 182 (1980) (Section 3.5 does not deprive superior court of its power to declare unconstitutional a statute governing administrative agencies); Radtke v. Alcoholic Beverage Control Approval Board, 491 F.Supp. 42 (C.D.Cal.1980) (Section 3.5 does not preclude state court from determining constitutional issues upon review of administrative discipline of liquor licensee). Rather, Section 3.5 merely restrains administrative agencies from refusing to enforce state statutes on constitutional grounds and from declaring state statutes unconstitutional. See Goldin v. Public Utilities Commission, 23 Cal.3d 638, 688 n.18, 153 Cal.Rptr. 802, 822 n.18, 592 P.2d 289," }, { "docid": "7833853", "title": "", "text": "illegal. Capitol argues that the lower state court will be limited to the evidence that is submitted to the administrative agencies. Therefore, if such records become available later, Capitol argues that it would be unable to present them in the state court. Even assuming that records that might become available subsequent to the administrative proceedings would be precluded in a de novo trial in state court, this would not render Capitol’s state remedies inadequate. It is unclear how much evi dence is unavailable to Capitol and how relevant it is to the issue of the correct amount of the subject assessment. Moreover, it is mere speculation that any additional EMI records will be made available during the pendency of state administrative and judicial proceedings. Most important, Capitol’s asserted problem is not unique in kind, though it may differ in degree, from that faced by many taxpayers in suits challenging a proposed assessment; it may not have available all of the information necessary to carry its burden of establishing that the proposed assessment is inappropriate. Even if Capitol were afforded an immediate trial in federal court, presumably, the same records would still be unavailable. Finally, Capitol argues that its remedy in state court is inadequate because it is uncertain whether the state courts can consider constitutional challenges to the proposed tax assessment. A state remedy is adequate only where it is certain that the taxpayer can raise constitutional claims in the state court. See fully, 429 U.S. at 73, 97 S.Ct. at 222 (federal district court is under equitable duty to refrain from interfering with a state’s collection except where “an asserted federal right might otherwise be lost”); cf. Atlantic Coast Line, 262 U.S. 413, 43 S.Ct. 620, 67 L.Ed. 1051 (state remedy inadequate where there was uncertainty as to state court’s limitations on such a remedy). The California Constitution prevents a state administrative agency from passing on constitutional questions. Art. 3, Sec. 3.5. Capitol suggests that because constitutional questions cannot be determined by the FTB or State Board of Equalization, the state court will not pass on such questions in" }, { "docid": "7833882", "title": "", "text": "payroll of the unitary business of which [Capitol], is a member, the determination of such factors by the department was appropriate and reasonable.” . Capitol appears to argue that if it cannot carry its burden before the state agencies because of the unavailability of certain EMI records, as a matter of state or constitutional law, such unavailability of records renders the subject assessment illegal. The California courts are capable of addressing that issue and any other issues related to such records. . Section 3.5 provides: An administrative agency, including an administrative agency created by the Constitution or an initiative statute, has no power: (a) To declare a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional; (b) To declare a statute unconstitutional; (c) To declare a statute unenforceable or to refuse to enforce a statute on the basis that federal law or federal regulations prohibit the enforcement of such statute unless an appellate court has made a determination that the enforcement of such statute is prohibited by federal law or federal regulations. Cal.Const. Art. 3, § 3.5. . The authority of California state courts to consider constitutional claims, notwithstanding Section 3.5, is indicated by the language in Section 3.5(a) & (c), “unless an appellate court has made a determination that the enforcement of such statute is unconstitutional,” Section 3.5(a), or “is prohibited by federal law or federal regulations,” Section 3.5(c). Generally, an appellate court will consider issues only after they have been addressed by the trial court. . In Goldin v. Public Utilities Commission, the California Supreme Court stated that “Section 3.5 places restraints on administrative agencies relative to their refusal to enforce statutes on constitutional grounds; it does not affect their enforcement of their own rules or their competence to examine evidence before them in light of constitutional standards.” 23 Cal.3d 638, 688 n.18, 153 Cal.Rptr. 802, 822 n.18, 592 P.2d 289, 309 n.18 (1979). . It is unclear from the record on appeal on what grounds the district court" }, { "docid": "7833857", "title": "", "text": "present case. In Barnes, the plaintiff refused to provide the Board with evidence admittedly in his possession. As the court in Barnes explained, “[t]he doctrine of exhaustion ... requires a party to use all available agency administrative procedures for relief and to proceed to a final decision on the merits by the agency before he may resort to the courts.” 118 Cal.App.3d at 1001, 173 Cal.Rptr. at 746. The purpose of the exhaustion doctrine is to give the Board “the opportunity to rectify any mistake in tax collection.” Id. As the Barnes court recognized, a taxpayer could frustrate this policy if he were allowed to withhold from the Board evidence in his possession and then seek state court review. In contrast, Capitol asserts that it cannot produce certain evidence possessed by another corporation. The exhaustion doctrine, as applied in Barnes, requires that the taxpayer do all he can to prevail in the administrative proceedings; it does not require that he do the impossible. If Capitol has provided the Board with all evidence within its control — a factual issue, which, under the doctrine, the Board has the first opportunity to determine — it will have “use[d] all available agency administrative procedures for relief” and, upon a “final determination on the merits” by the Board, will have exhausted its administrative remedies. The inability to produce certain evidence may cause the taxpayer to lose in the administrative proceedings because he may be unable to carry his burden of proof. It will not, however, unlike the refusal to produce evidence, preclude judicial review of the Board’s determination and of any constitu tional challenges raised by the taxpayer. If it is Capitol’s contention that its inability to produce evidence possessed by EMI renders the subject assessment unconstitutional, that challenge too may be raised in state court following an unfavorable ruling by the Board; however, a favorable ruling by the Board would moot that issue — which is precisely the reason that the administrative proceedings should be allowed to run their course. Thus, contrary to Capitol’s contention, the doctrine of exhaustion under California law does" }, { "docid": "15077297", "title": "", "text": "court order is not reviewed on the merits by an appellate court and thus no binding precedent exists as to its constitutionality. Specifically, Vargas cites a provision of the California Constitution that states that “[a]n administrative agency ... has no power ... to refuse to enforce a statute on the basis that federal law or federal regulations prohibit the enforcement of such statute unless an appellate court has made a determination that the enforcement of such statute is prohibited by federal law or federal regulations.” Cal. Const, art. Ill, § 3.5(c) (emphasis added). It seems likely that the reference in the provision is to a state appellate court and that it is not intended to deal with decisions of federal district courts. But there could, in any event, be no “confusion” in light of the Supremacy Clause. U.S. Const, art. VI, cl. 2. If a federal district court were to enjoin a County Clerk from enforcing state law, no provision of state law could shield her against the force of that injunction. Cf LSO, Ltd. v. Stroh, 205 F.3d 1146, 1159-1160 (9th Cir.2000) (criticizing an expansive interpretation of Cal. Const, art. Ill, § 3.5, and explaining, “It is a long-standing principle that a state may not immunize its officials from the requirements of federal law”). The Vargas claim therefore fails in this regard as well. B. The County of Imperial and the Board of Supervisors The Board of Supervisors of Imperial County and the County itself also claim significant protectable interests warranting intervention. Neither claim is sustainable. First, the Board alleges that it “has ultimate responsibility to ensure that county clerks and their deputies faithfully perform their legal duties, including those relating to marriage.” Under California law, however, the Board plays no role with regard to marriage, which is “a matter of ‘statewide concern’ rather than a ‘municipal affair.’ ” Lockyer, 17 Cal.Rptr.3d 225, 95 P.3d at 471. Local elected leaders “may have authority under a local charter to supervise and control the actions of a county clerk or county recorder with regard to other subjects,” but they have “no" }, { "docid": "7833855", "title": "", "text": "a subsequent court action. Although there is little case law interpreting Section 3.5, it is clear that the section does not preclude a taxpayer from raising constitutional claims in subsequent judicial actions. See, e.g., Japan Lines, Ltd. v. County of Los Angeles, 441 U.S. 434, 99 S.Ct. 1813, 60 L.Ed.2d 336 (1979) (California Superior Court ruled on the constitutionality of ad valorem tax application in refund action); cf. Fenske v. Public Employment Retirement System (P.E.R.S.) Board of Ad ministration, 103 Cal.App.3d 590, 163 Cal.Rptr. 182 (1980) (Section 3.5 does not deprive superior court of its power to declare unconstitutional a statute governing administrative agencies); Radtke v. Alcoholic Beverage Control Approval Board, 491 F.Supp. 42 (C.D.Cal.1980) (Section 3.5 does not preclude state court from determining constitutional issues upon review of administrative discipline of liquor licensee). Rather, Section 3.5 merely restrains administrative agencies from refusing to enforce state statutes on constitutional grounds and from declaring state statutes unconstitutional. See Goldin v. Public Utilities Commission, 23 Cal.3d 638, 688 n.18, 153 Cal.Rptr. 802, 822 n.18, 592 P.2d 289, 309 n.18 (1979). Therefore, constitutional challenges to tax assessments may be raised in the California courts. However, as stated above, in order to obtain state court review of constitutional challenges, a taxpayer must first exhaust its administrative remedies. Capitol argues that, under California law, its inability to provide the Board with certain evidence controlled by EMI will constitute a failure to exhaust, thus precluding state court review of the constitutional issues raised in this case. Capitol bases this argument on Barnes, 118 Cal.App.3d 994, 173 Cal.Rptr. 742. In Barnes, the plaintiff brought a declaratory action in Superior Court alleging that the Board had wrongfully denied his claim for a refund of a tax overpayment and challenging the constitutionality of certain tax statutes and regulations. The district court granted the Board’s motion for summary judgment on the ground that the plaintiff’s refusal to provide the Board with documentation for his claim of overpayment constituted a failure to exhaust his administrative remedies. The granting of summary judgment was affirmed on appeal. Barnes is clearly distinguishable from the" }, { "docid": "22095992", "title": "", "text": "S. 481, 488 (1913) (holding that federal courts will not enjoin the collection of unconstitutional state taxes where the taxpayer “ha[s] a plain, adequate and complete remedy” at law); Great Lakes Dredge & Dock Co. v. Huffman, supra, at 299 (holding that the same “considerations which have led federal courts of equity to refuse to enjoin the collection of state taxes, save in exceptional cases, require a like restraint in the use of the declaratory judgment procedure”); Fair Assessment in Real Estate Assn., Inc. v. McNary, 454 U. S. 100, 103 (1981) (noting that the Tax Injunction Act, “and the decisions of this Court which preceded it, reflect the fundamental principle of comity between federal courts and state governments that is essential to ‘Our Federalism,’ particularly in the area of state taxation”). Apparently, California taxpayers cannot raise their constitutional challenges in the administrative tax refund proceeding unless an appellate court already has sustained such a challenge. See Cal. Const., Art. Ill, §3.5, which provides in part that “[a]n administrative agency . . . has no power: “(a) To declare a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional; “(b) To declare a statute unconstitutional.” Significantly, the California administrative and judicial scheme for challenging a tax assessment is remarkably similar to the Illinois scheme that we upheld in Rosewell as “plain, speedy and efficient.” See 450 U. S., at 508-509, and nn. 6, 7. In fact, the California tax scheme is more favorable to the taxpayer than the Illinois scheme in that it requires the State to pay interest on improperly collected taxes. See Cal. Un. Ins. Code Ann. § 1242 (West Supp. 1982). This Court has not hesitated to declare a state refund provision inadequate to bar federal relief if the taxpayer’s opportunity to raise his constitutional claims in the state proceedings is uncertain. In Hillsborough v. Cromwell, 326 U. S. 620 (1946), the taxpayer could not raise his constitutional challenge in the administrative proceedings, and appeal to the state" }, { "docid": "7833851", "title": "", "text": "taxpayer can expedite the state proceedings by paying the proposed tax, filing a claim for refund, and then, after six months, filing a suit for refund in state court. Cal.Rev. & Tax.Code §§ 26073-26076. Capitol argues, however, that the failure to exhaust administrative remedies may limit the issues and evidence that can be presented in a state court action. The jurisdictional bar of Section 1341 is not avoided where a state prescribes resort to administrative remedies before state court review. See George F. Alger Co. v. Peck, 347 U.S. 984, 74 S.Ct. 605, 98 L.Ed. 1120 (1954). Thus, even assuming that Capitol must exhaust its state administrative remedies to be assured of an effective adjudication in state court, the imposition of such a requirement does not necessarily render the state remedies inadequate for purposes of the Anti-Injunction Act. Although exhaustion of administrative remedies may result in a less speedy adjudication, it is also possible that the taxpayer may emerge victorious without the necessity of judicial action or that certain issues may be resolved prior to judicial action. See, e.g., People v. West Publishing Co., 35 Cal.2d 80, 216 P.2d 441 (1950) (exhaustion of administrative remedies affords Board the opportunity to rectify mistake in tax collection); Barnes v. State Board of Equalization, 118 Cal.App.3d 994, 173 Cal.Rptr. 742 (1981). In any event, the rule is not one of comparative remedies: “For a state remedy to be ‘adequate’ under [section 1341] it need not necessarily be ‘the best available or even equal to or better than the remedy which might be available in the federal courts’ ”. Mandel, 494 F.2d at 367; quoting Bland v. McHann, 463 F.2d 21, 29 (5th Cir. 1972), cert. denied, 410 U.S. 966, 93 S.Ct. 1438, 35 L.Ed.2d 700 (1973). Capitol further argues that the unavailability of certain EMI business records renders the available state remedies ineffective. Capitol contends that it cannot force its parent, EMI, to provide documents necessary for Capitol to carry its burden before the FTB, the State Board of Equalization, or the state court, of establishing that the proposed assessment is inaccurate or" }, { "docid": "7833881", "title": "", "text": "The California Supreme Court held that the taxpayer was precluded from introducing such evidence as to the issue of the amount of the assessment because it had failed to provide such evidence to the relevant agencies. The Court concluded that had such evidence been presented to the administrative agencies below, the alleged inaccuracies could have been corrected then. Id. It does not necessarily follow from West and Barnes that the California courts would prevent a taxpayer from presenting newly available evidence in a refund suit, where the correct amount of the subject assessment was raised before the FTB and the taxpayer provided the Board with the relevant documents within its control. . The FTB’s “Resolution Denying the Section 25137 Petition of [Capitol],” see note 3 supra, states that “[t]he Official Secrets Act of the United Kingdom would not appear to preclude the submission of payroll and property factors attributable to the music activities of the organization.” The FTB went on to conclude that “[i]n the absence of specific information as to the total property and payroll of the unitary business of which [Capitol], is a member, the determination of such factors by the department was appropriate and reasonable.” . Capitol appears to argue that if it cannot carry its burden before the state agencies because of the unavailability of certain EMI records, as a matter of state or constitutional law, such unavailability of records renders the subject assessment illegal. The California courts are capable of addressing that issue and any other issues related to such records. . Section 3.5 provides: An administrative agency, including an administrative agency created by the Constitution or an initiative statute, has no power: (a) To declare a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional; (b) To declare a statute unconstitutional; (c) To declare a statute unenforceable or to refuse to enforce a statute on the basis that federal law or federal regulations prohibit the enforcement of such statute unless an appellate court has made" }, { "docid": "12262264", "title": "", "text": "district court’s findings that prongs one and two of the Middlesex test are satisfied. Rather, he argues that the third prong of the Mid-dlesex test is not met. He contends he will be unable to litigate his federal constitutional claims in the state proceedings due to the inadequacy of those proceedings and bias by the Board. He also argues the district court erred by denying his request for an evidentiary hearing to present oral testimony on his claim that the bad faith exception to Younger abstention applied. 1. Adequacy of California’s Procedures Article III, § 3.5 of the California Constitution prohibits administrative bodies from declaring statutes unconstitutional or refusing enforcement of statutes on the basis of claims that such statutes are unconstitutional. However, “even if a federal plaintiff cannot raise his constitutional claims in state administrative proceedings that implicate important state interests, his ability to raise the claims via state judicial review of the administrative proceedings suffices.” Partington, 880 F.2d at 124; see also Ohio Civil Rights Comm’n v. Dayton Christian Sch. Inc., 477 U.S. 619, 629, 106 S.Ct. 2718, 2723-24, 91 L.Ed.2d 512 (1986). Section 3.5 of the California constitution “[‘Jdoes not affect ... [administrative agencies’] competence to examine evidence before them in light of constitutional standards.’ ” Dash, Inc. v. Alcoholic Beverage Control Appeals Bd., 683 F.2d 1229, 1234 (9th Cir.1982) (quoting Capitol Indus.-EMI v. Bennett, 681 F.2d 1107, 1117 n. 28 (9th Cir.), cert, denied, 459 U.S. 1087, 103 S.Ct. 570, 74 L.Ed.2d 932 (1982)). The Board may “receive evidence in light of [Kenneally’s constitutional] challenges and the California [courts] remain competent to review such challenges” upon a petition for writ of mandate. Id. at 1235. See also Cal.Civ. Proc.Code § 1094.5; Cal.Gov’t Code § 11523. Kenneally argues that he will not have a meaningful opportunity to present his constitutional claims to the state court, because the Board will revoke his license immediately upon conclusion of the hearing. In response to this contention, the Board has stipulated that it will not make its decision effective until thirty days after a decision is rendered. Kenneally asserts that even" }, { "docid": "7833852", "title": "", "text": "judicial action. See, e.g., People v. West Publishing Co., 35 Cal.2d 80, 216 P.2d 441 (1950) (exhaustion of administrative remedies affords Board the opportunity to rectify mistake in tax collection); Barnes v. State Board of Equalization, 118 Cal.App.3d 994, 173 Cal.Rptr. 742 (1981). In any event, the rule is not one of comparative remedies: “For a state remedy to be ‘adequate’ under [section 1341] it need not necessarily be ‘the best available or even equal to or better than the remedy which might be available in the federal courts’ ”. Mandel, 494 F.2d at 367; quoting Bland v. McHann, 463 F.2d 21, 29 (5th Cir. 1972), cert. denied, 410 U.S. 966, 93 S.Ct. 1438, 35 L.Ed.2d 700 (1973). Capitol further argues that the unavailability of certain EMI business records renders the available state remedies ineffective. Capitol contends that it cannot force its parent, EMI, to provide documents necessary for Capitol to carry its burden before the FTB, the State Board of Equalization, or the state court, of establishing that the proposed assessment is inaccurate or illegal. Capitol argues that the lower state court will be limited to the evidence that is submitted to the administrative agencies. Therefore, if such records become available later, Capitol argues that it would be unable to present them in the state court. Even assuming that records that might become available subsequent to the administrative proceedings would be precluded in a de novo trial in state court, this would not render Capitol’s state remedies inadequate. It is unclear how much evi dence is unavailable to Capitol and how relevant it is to the issue of the correct amount of the subject assessment. Moreover, it is mere speculation that any additional EMI records will be made available during the pendency of state administrative and judicial proceedings. Most important, Capitol’s asserted problem is not unique in kind, though it may differ in degree, from that faced by many taxpayers in suits challenging a proposed assessment; it may not have available all of the information necessary to carry its burden of establishing that the proposed assessment is inappropriate. Even" }, { "docid": "22095970", "title": "", "text": "are meritorious, an issue on which we express no view, there is every reason to believe that once a state appellate court has declared the tax unconstitutional the appropriate state agencies will respect that declaration. See Pacific Motor Transport Co. v. State Board of Equalization, 28 Cal. App. 3d 230, 236, 104 Cal. Rptr. 558, 562 (1972) (noting that while the “relief afforded may not ‘prevent or enjoin’ or otherwise hamper present or future tax assessment or collection effort. . . [i]t will be presumed that the governmental agency will respect a judicial declaration concerning a regulation’s validity”). Accordingly, it appears that Rosewell is directly applicable to the present cases, and that the District Court had no jurisdiction to hear the appel-lees’ claims. The appellees contend, however, that the California refund procedures do not constitute a “plain, speedy and efficient remedy” because their claims can be remedied only by injunc-tive relief, and that such relief is unavailable in California courts to restrain the collection of state taxes. See n. 10, supra. Injunctive relief is necessary, the appellees claim, because prior to state judicial review, the employer must meet certain recordkeeping, registration, and reporting requirements, see Cal. Un. Ins. Code Ann. §§ 1085, 1086,1088, 1092 (West 1972 and Supp. 1982), and potentially is subject to administrative benefit eligibility hearings in violation of the appellees’ First Amendment rights. The appellees thus fear that their constitutional rights will be violated before they have an opportunity to challenge the constitutionality of the unemployment tax scheme in state court. This argument is unpersuasive. First, nothing in the California scheme precludes the appellees from challenging the unemployment tax before a benefit eligibility hearing is held for one of their former employees. As soon as an employer makes its first payment to the state unemployment insurance fund, it may file for a refund and, after exhausting state administrative remedies, seek a judicial determination of the constitutionality of the tax. If the employer ultimately pre vails on his constitutional argument, the state taxing authorities can be expected to respect that court’s holding in future administrative proceedings. See Pacific" }, { "docid": "7833858", "title": "", "text": "— a factual issue, which, under the doctrine, the Board has the first opportunity to determine — it will have “use[d] all available agency administrative procedures for relief” and, upon a “final determination on the merits” by the Board, will have exhausted its administrative remedies. The inability to produce certain evidence may cause the taxpayer to lose in the administrative proceedings because he may be unable to carry his burden of proof. It will not, however, unlike the refusal to produce evidence, preclude judicial review of the Board’s determination and of any constitu tional challenges raised by the taxpayer. If it is Capitol’s contention that its inability to produce evidence possessed by EMI renders the subject assessment unconstitutional, that challenge too may be raised in state court following an unfavorable ruling by the Board; however, a favorable ruling by the Board would moot that issue — which is precisely the reason that the administrative proceedings should be allowed to run their course. Thus, contrary to Capitol’s contention, the doctrine of exhaustion under California law does not preclude the constitutional review it seeks. Therefore, Capitol has a “plain, speedy and efficient remedy” within the meaning of Section 1341. B The district court treated the Board Members renewed motions to dismiss as motions for summary judgment and granted the motion in Case No. 80-4113. This Court has held, however, that an order of dismissal, and not a Rule 56 motion for summary judgment, is the proper method for disposing of an action in which subject matter jurisdiction is lacking. See O’Donnell v. Wien Air Alaska, Inc., 551 F.2d 1141, 1145 n.4 (9th Cir. 1977); Jones v. Brush, 143 F.2d 733, 735 (9th Cir. 1944). The principle underlying the rule is that the tenor of Rule 56 suggests that summary judgment thereunder deals with the merits of an action and not with matters of abatement. O’Donnell at 1145 n.4, quoting 6 J. Moore, Moore’s Federal Practice ¶56.03, at 56-57 [footnote omitted] (2d ed. 1976). Lack of subject matter jurisdiction is properly a matter in abatement. Id. It is, therefore, error to rule on" }, { "docid": "12262274", "title": "", "text": "Kennedy, 412 F.2d 541, 546 (9th Cir.1969) (court did not abuse its discretion in refusing to permit oral testimony when presentation of many affidavits and oral argument provided sufficient opportunity for opposition to preliminary injunction). AFFIRMED. . Section 3.5 provides: An administrative agency, including an administrative agency created by the Constitution or an initiative statute, has no power: (a) To declare a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional; (b) To declare a statute unconstitutional; (c) To declare a statute unenforceable or to refuse to enforce a statute on the basis that federal law or federal regulations prohibit the enforcement of such statute unless an appellate court has made a determination that the enforcement of such statute is prohibited by federal law or federal regulations. Cal. Const. Art. Ill § 3.5. . The Board has the power to include a stay of execution in its decision, or a stay may be granted by the Board at any time before the decision becomes effective. See Cal.Gov’t Code § 11519(b). . Kenneally also argues that he will not have an opportunity to present his constitutional claims because neither the state superior court nor the state appellate court can disturb the Board’s order to revoke a physician’s license. This contention is meritless. If the determination of the reviewing court is in favor of the petitioner, judgment is entered commanding the respondent agency to set aside its order or decision. See Cal.Civ.Proc.Code § 1094.5(f). \"Where the judgment commands that the order or decision be set aside, it may order the reconsideration of the case in the light of the court’s opinion and judgment ... but the judgment shall not limit or control in any way the discretion legally vested in the respondent.” See id. The California superior court is fully capable of adjudicating and protecting Kenneally’s constitutional rights. See also Franz v. Board of Medical Quality Assurance, 31 Cal.3d 124, 181 Cal.Rptr. 732, 741, 642 P.2d 792, 801 (1982) (section 1094.5(b) gives the" }, { "docid": "9831431", "title": "", "text": "preclusion as a defense under the test imposed by section 28(3) of the second Restatement. First, the procedures used by the ABC, like those of almost any other California administrative tribunal, are quite different than those used by a court. As noted above, discovery is severely limited in a proceeding before an administrative agency. Any relevant evidence is admissible, and the normal evidentiary objections are not permitted. Second, the ABC’s expertise lies in the area of enforcement of the liquor laws, not in the determination of whether police misconduct rises to the level of a violation of the Constitution. The ABC’s jurisdiction is limited to determining whether a certain narrow set of circumstances exists that, under the applicable statute, justifies revocation or suspension of a liquor license, and does not include the power to determine claims of police misconduct directly. It is the courts, and not the ABC, that have the expertise in determining whether the Constitution has been violated. Third, the purposes behind the division of jurisdiction between the ABC and the courts are clear. The ABC was established in order “to eliminate the evils of unlicensed and unlawful manufacture, selling, and disposing of alcoholic beverages, and to promote temperance in the use and consumption of alcoholic beverages” and to “ensure a strict, honest, impartial and uniform administration and enforcement of the liquor laws throughout the State.” Thus, the function of the ABC is to police the liquor laws and licensing requirements. The function of the courts is, among other things, to interpret the Constitution. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177-78, 2 L.Ed. 60 (1803); Fenske v. Board of Administration, 103 Cal.App.3d 590, 595, 163 Cal.Rptr. 182, 185 (1980); Byers v. Board of Supervisors, 262 Cal.App.2d 148, 157-58, 68 Cal.Rptr. 549, 555 (1968). The purposes behind the allocation of jurisdiction between the ABC and the courts, the difference in the relative expertise of the two bodies in the area of adjudicating unconstitutional police conduct, and the informal nature of litigation before the ABC, require the conclusion that, under section 28(3) of the second Restatement, the" }, { "docid": "7833869", "title": "", "text": "will fairly represent the taxpayer’s business activity in this state; or d. The employment of any other method to effectuate an equitable allocation and apportionment of the taxpayer’s income. . Appellees submitted a copy of the Board’s resolution, dated October 21, 1981, denying Capitol’s Section 25137 petition challenging the subject proposed additional assessment. . Subsequent to oral argument on appeal, appellants filed a Motion for Designation of Substituted Parties, pursuant to Federal Rule of Civil Procedure 25(d). Under Federal Rule of Appellate Procedure 43(c), the substitution of public officials who have succeeded those named as parties occurs automatically. An order of substitution is unnecessary under Rule 43(c) but such an order may be entered at anytime thereunder. Upon the representations of appellants as to the present membership of the FTB and upon the non-opposition of appel-lees to the motion for designation of substitution, this Court hereby orders that Mary Ann Graves, Ernest J. Dronnenburg, Jr., and Gerald H. Goldberg, be substituted for Richard Silber-man, William M. Bennett, and Martin Huff, as defendants-appellees in these actions, pursuant to Rule 43(c). . In particular, Capitol argues that the proposed assessment is unconstitutional in view of Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 99 S.Ct. 1813, 60 L.Ed.2d 336 (1979), where the Supreme Court held that the Commerce Clause of the United States Constitution prohibited a state from imposing a nondiscriminatory ad valorem tax on foreign-owned instru-mentalities engaged solely in international commerce. . See note 8 supra. . Appellees also contend that the present actions are barred from being brought in federal court by the Eleventh Amendment. A court should not pass upon a constitutional question although properly presented by the record, if there is also present a statutory ground upon which the case may be disposed of. See, generally, Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975). This principle has varied application, id., and presumably applies where two grounds are presented for defeating subject matter jurisdiction. See, generally, 1 Moore’s Federal Practice ¶ 0.60[3], at 620-21 (2d ed. 1980). Thus, this Court should" } ]

[ { "docid": "7777386", "title": "", "text": "since 1863, this Court concludes that the law of finds applies. a) Embeddedness Under general finds principles, it is well settled that in a suit between competing salvors the first finder to take possession of lost or abandoned property with the intention to exercise control over it acquires title. Klien v. Unident., Wrecked & Aban. Sailing Vessel, 568 F.Supp. 1562, 1565 (S.D.Fla.1983); see also Rickard v. Pringle, 293 F.Supp. 981 (S.D.N.Y.1968); Brady v. S.S. African Queen, 179 F.Supp. 321 (E.D.Va.1960); Wiggins v. 1100 Tons, More Or Less, Of Italian Marble, 186 F.Supp. 452 (E.D.Va.1960); Eads v. Brazelton, 22 Ark. 499 (1861). In the instant case, however, the state does not assert a claim as a competing salvor; rather, the state maintains that under the “embeddedness” exception to the law of finds, (i.e., because THE NASHVILLE is embedded on state property), title to the vessel rests with the state. In Klien v. Unident., Wrecked & Aban. Sailing Vessel, 568 F.Supp. 1562, 1565 (S.D.Fla.1983), the court confronted a situation similar to that in the instant case. In Klien, an action was brought by an alleged “finder” for title to an abandoned shipwreck; alternatively, plaintiffs asserted a salvage claim. Id. at 1564. The ship was located on United States property in Biscayne National Park. The United States was aware of the vessel’s existence and its approximate location since at least 1975. Id. The plaintiff discovered the actual location of the ship in 1978; the United States discovered it in 1980. Id. In resolving the title dispute between the United States and the alleged finders the Klien court applied the common law of finds. According to Judge Atkins, “[t]he general rule in the law of finds is that the determination of the finder’s right to abandoned property is unaffected by the ownership of the land on which the property is found.” Id. at 1565. When personalty is found embedded in land however, title to that personalty rests with the owner of the land. Id. at 1565, citing 36A C.J.S. Finding Lost Goods § 5c (1961); 1 Am Jur 2d Abandoned, Lost Property §§ 3," } ]

[ { "docid": "9781103", "title": "", "text": "assumes no other basis for federal jurisdiction can be found. The parties are not alleged to be diverse. The ASA itself gives finders no cause of action or right to relief. . The elimination of the law of salvage as applied to embedded shipwrecks in particular would destroy a finder’s ability to bring a federal in rem admiralty action. In rem jurisdiction exists when a maritime lien arises. Fed.R.Civ.P. C(l) (Supplemental Rules of Certain Admiralty and Maritime Claims). It is the salvage claim that gives rise to a lien, for the salvage award is secured by the ship itself. Norris, 3A Benedict on Admiralty § 143 (1991). . The law of finds developed at common law but has come to be considered a maritime concept. S.ee Owen, The Abandoned Shipwreck Act of 1987: Goodbye to Salvage in the Territorial Sea, 19 J. of Mar.L. & Comm. 499, 510 (1988). Compare Subaqueous, 577 F.Supp. at 611 (referring to \"maritime law of finds”); Treasure Salvors, 569 F.2d at 336 (law of finds is adjunct to salvage law), with Jupiter Wreck, Inc. v. Unidentified, Wrecked & Abandoned Sailing Vessel, 691 F.Supp. 1377, 1385 (S.D.Fla.1988) (\"resolution to a claim of ownership * * * of an historic shipwreck must be based on application of the common law of finds”); Klein v. Unidentified Wrecked and Abandoned Sailing Vessel, 758 F.2d 1511, 1514 (11th Cir.1985) (\"The common law of finds generally assigns ownership of the abandoned property * * * ’’). Congress seems to have assumed that the law of finds was indeed an aspect of admiralty law. See, e.g., House Report at 366 (\"Aspects of admiralty law most applicable [to historic wrecks] are the ‘Law of Finds’ * * * 'and the Law of Salvage.’ ”). . Recently the Supreme Court has implied that the uniformity doctrine is only properly invoked to strike down state legislation when it purports to regulate commercial navigation, \"suits relating to the relationship of vessels, plying the high seas and our navigable waters, and to their crews.” Askew v. American Waterways Operators, Inc., 411 U.S. 325, 93 S.Ct. 1590, 36" }, { "docid": "1716462", "title": "", "text": "improvements, and natural resources.... . Plaintiff does not expressly state that the shipwreck is located within the State’s boundaries. However, the complaint does assert that the shipwreck is located “within the territorial jurisdiction of this Court.\" Plaintiff also has not responded to the State’s assertion that it is undisputed that the shipwreck lies within the State’s boundaries. . It might be contended that the common law of salvage applies rather than the law of finds. Pursuant to the law of salvage, the provision of salvage services to an imperiled vessel gives rise to a maritime lien. In order for the law of salvage to apply even when a vessel is abandoned, it is presumed that the property has not been divested of title. The property is sold by the court, and the salvor receives a portion of the proceeds as compensation. See Chance, 606 F.Supp. at 804. The prevailing view is that in the context of historic, abandoned shipwrecks, the law of finds applies rather than the law of salvage. See Martha's Vineyard Scuba Headquarters, Inc. v. Unidentified Wrecked and Abandoned Steam Vessel, 833 F.2d 1059, 1065 (1st Cir.1987); Jupiter Wreck, 691 F.Supp. at 1385; Chance, 606 F.Supp. at 804; Subaqueous, 577 F.Supp. at 611. A salvage award provides an incentive to salvors and thus helps to protect the owner of the property against the loss of that property. See Jupiter Wreck, 691 F.Supp. at 1388. To apply the law of salvage, however, by creating the fiction of continuing ownership even after the property has long been abandoned is rather absurd, especially when the law of finds provides a rational method for determining rights in the property. See Treasure Salvors, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 569 F.2d 330, 336 (5th Cir.1978); Jupiter Wreck, 691 F.Supp. at 1385. In any event, it appears that application of the law of salvage would often lead to the same result. Under the law of salvage, the owner of the vessel may reject the salvage services, in which event the salvor is not entitled to an award. See Platoro, 695 F.2d at" }, { "docid": "8076799", "title": "", "text": "into any salvage contracts concerning its recovery. They did nothing to recover the property, just as they had done for the past 130-plus years. As I have shown, the evidence offered by the majority provides little support for its argument that the insurers did not abandon their claims. In my opinion, the majority’s substitution of its judgment as to the facts is even more improper when, as here, there is ample support in the record for the district court’s factual finding of abandonment. Finds v. Salvage I disagree with the majority’s decision to apply the law of salvage to the facts of this case. It appears to base its decision on the erroneous belief that courts favor applying salvage law rather than the law of finds. Majority op. at 460. In fact, in the context of long lost wrecks, such as the instant case, courts, almost without exception, apply the law of finds. Martha’s Vineyard Scuba Headquarters v. Unidentified, Wrecked and Abandoned Steam Vessel, 833 F.2d 1059, 1065 (1st Cir.1987) (ocean liner sunk in 1909); Klein v. Unidentified Wrecked and Abandoned Sailing Vessel, 758 F.2d 1511, 1514 (11th Cir.1985) (English ship sunk in eighteenth century); Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 569 F.2d 330, 337 (5th Cir.1978) (Spanish galleon sunk in 1622); Sub-Sal, Inc. v. The DeBraak, No. 84-296, 1992 WL 39050, at * 1-2, 1992 U.S. Dist. LEXIS 2461, at *6-7 (D.Del.1992) (British ship sunk in 1798); Zych v. Unidentified, Wrecked and Abandoned Vessel, 746 F.Supp. 1334, 1343-44 n. 12 (N.D.Ill.1990), vacated, 941 F.2d 525 (7th Cir.1991) (steamer sunk in 1860); Jupiter Wreck, Inc. v. Unidentified Sailing Vessel, 691 F.Supp. 1377, 1385 (S.D.Fla.1988) (Spanish galleon sunk in seventeenth century); Indian River Recovery Co. v. The China, 645 F.Supp. 141, 144 (D.Del.1986) (ship sunk in nineteenth century); Chance v. Certain Artifacts Found and Salvaged from the NASHVILLE, 606 F.Supp. 801, 804 (S.D.Ga.1984) (Confederate raider sunk in 1863); Wiggins v. 1100 Tons, More or Less, of Italian Marble, 186 F.Supp. 452, 456 (E.D.Va.1960) (Norwegian ship sunk in 1894); Commonwealth v. Maritime Underwater Surveys, Inc., 403 Mass. 501," }, { "docid": "9781081", "title": "", "text": "judge, we focus exclusively on the Abandoned Shipwreck Act of 1987, 43 U.S.C. § 2101 et seq., a brief statute that has not previously been invoked or challenged in litigation. If the ASA applies to this case, and is found constitutional, it is dispositive. The ASA explicitly precludes a claimant to an “embedded” wreck from invoking the law of finds or the law of salvage. Because these are the only two admiralty causes of action stated in Zych’s complaint, if the ASA constitutionally can be applied to the Seabird, Zych has simply failed to state a right to relief. The Eleventh Amendment bar is irrelevant, as is any “colorability” analysis. However, as explained infra, the entry of judgment against Zych in this suit would not necessarily leave Zych without a forum in which to adjudicate his dispute. We believe the ASA, if constitutional, opens the way for a state court to determine title to the Seabird. Congress enacted the ASA in an attempt to clear longstanding confusion over whether the states or the federal government owned and had responsibility for managing historic wrecks. The House Report noted the existing confusion: over the ownership and authority to manage abandoned shipwrecks. States have claimed title to, and regulatory authority over, abandoned historic shipwrecks located on submerged lands under their jurisdiction. The Federal Admiralty Courts have also claimed jurisdiction over the salvage of these resources. H.R.Rep. No. 100-514(1), 100th Cong., 2d Sess., reprinted in 1988 U.S.Code Cong. & Admin.News 365, 366 [hereinafter House Report]. While 28 states had passed legislation relating to the management of historic shipwrecks at the time the ASA was being considered, they had achieved only limited success in enforcing their laws. Id. at 366. Some federal courts had held that cases involving shipwrecks were within their exclusive admiralty jurisdiction and applied either the law of finds or the law of salvage to adjudicate the disputes before them. See, e.g., Platoro, Ltd. Inc. v. Unidentified Remains of a Vessel, 614 F.2d 1051 (5th Cir.), certiorari denied, 449 U.S. 901, 101 S.Ct. 272, 66 L.Ed.2d 131 (1980); Treasure Salvors, Inc. v." }, { "docid": "1716422", "title": "", "text": "in the shipwrecks by making clear that the lake bed on which the shipwrecks lie belongs to the State. With ownership of the lake bed established, the common law of finds gives the State a colorable claim of ownership to the shipwrecks found on that lake bed. The law of finds generally provides that the first finder to take possession of lost or abandoned property with the intention to exercise control over it acquires title. See Klein v. Unidentified Wrecked and Abandoned Sailing Vessel, 758 F.2d 1511, 1514 (11th Cir.1985); Jupiter Wreck, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 691 F.Supp. 1377, 1386 (S.D.Fla.1988); Chance v. Certain Artifacts Found and Salvaged from the Nashville, 606 F.Supp. 801, 804 (S.D.Ga.1984), aff'd mem., 775 F.2d 302 (11th Cir.1985). An exception applies, however, to vest title in the owner of the land if the property is found embedded in the land. Klein, 758 F.2d at 1514; Jupiter Wreck, 691 F.Supp. at 1386; Chance, 606 F.Supp. at 805. Abandoned shipwrecks are generally considered to be “embedded” in the submerged land. See Klein, 758 F.2d at 1514; Jupiter Wreck, 691 F.Supp. at 1386; ^ Chance, 606 F.Supp. at 805-07. In this case, the State has contended that the shipwrecks are embedded in submerged land within the State’s boundaries. Plaintiff has not contended otherwise, but argues that the State has no knowledge of whether the wrecks are embedded. In ruling on the State’s motion to dismiss, the Court cannot determine title, but may only determine whether the State’s claim of ownership is colorable. Considering the cases cited above, the shipwrecks are likely embedded in submerged lands which the State owns pursuant to the Submerged Lands Act, and the embeddedness exception of the common law of finds gives the State a colorable claim of ownership in the shipwrecks. c. Abandoned Shipwreck Act The State also contends that it has a colorable claim to ownership in the shipwrecks pursuant to the Abandoned Shipwreck Act, 43 U.S.C. § 2101 et seq. (“the ASA”). The heart of the ASA is 43 U.S.C. § 2105, which provides in part: (a)" }, { "docid": "9781083", "title": "", "text": "Unidentified Wrecked & Abandoned Sailing Vessel, 569 F.2d 330 (5th Cir.1978); Martha’s Vineyard Scuba Headquarters, Inc. ¶. Unidentified, Wrecked & Abandoned Steam Vessel, 833 F.2d 1059 (1st Cir.1987). Courts also had specifically held that any applicable state regulation was pre-empted by admiralty principles. See, e.g., Cobb Coin Co. v. Unidentified, Wrecked & Aban doned Sailing Vessel, 525 F.Supp. 186 (S.D.Fla.1981), contra, Subaqueous Exploration & Archaeology, Ltd. v. Unidentified, Wrecked & Abandoned Vessel, 577 F.Supp. 597 (D.Md.1983), affirmed without opinion, 765 F.2d 139 (4th Cir.1985). Senator Bill Bradley, sponsor of the Senate bill, expressed a concern that “[u]nder the current system, Federal courts — sitting in admiralty — have substantial policymaking power, which has resulted in uneven judgments about the historical value of shipwrecks.” 113 Cong.Rec. S. 3988-3989 (March 26, 1987). Congress’ answer was to assert federal ownership of certain shipwrecks and simultaneously transfer title of those wrecks to the states for administration, management and regulation. In Section 6(a) of the ASA the United States claims title to all abandoned shipwrecks either embedded in the submerged lands of a state or resting on submerged lands of a state but eligible for inclusion in the National Register of Historic Places. 43 U.S.C. § 2105(a). Section 6(c) of the ASA transfers title of the shipwrecks specified in 6(a) to the states in which they are located. 43 U.S.C. § 2105(c). Section 5 mandates that the Secretary of the Interior establish guidelines within nine months after enactment of the ASA to “assist states * * * in developing legislation and regulations to carry out their responsibilities under this Act.” 43 U.S.C. § 2104(c). Congress contemplated that after promulgation of federal guidelines, states would “have jurisdiction over and management responsibility for” historic wrecks in state waters. House Report at 373. Two aspects of the ASA are especially important for our purposes. First the scope of the ASA is limited. Congress only cared to transfer ownership and ensure protection of shipwrecks of “historic significance,” House Report at 365, which it estimated to be a mere five to ten percent of the 50,000 abandoned shipwrecks located in" }, { "docid": "9781082", "title": "", "text": "owned and had responsibility for managing historic wrecks. The House Report noted the existing confusion: over the ownership and authority to manage abandoned shipwrecks. States have claimed title to, and regulatory authority over, abandoned historic shipwrecks located on submerged lands under their jurisdiction. The Federal Admiralty Courts have also claimed jurisdiction over the salvage of these resources. H.R.Rep. No. 100-514(1), 100th Cong., 2d Sess., reprinted in 1988 U.S.Code Cong. & Admin.News 365, 366 [hereinafter House Report]. While 28 states had passed legislation relating to the management of historic shipwrecks at the time the ASA was being considered, they had achieved only limited success in enforcing their laws. Id. at 366. Some federal courts had held that cases involving shipwrecks were within their exclusive admiralty jurisdiction and applied either the law of finds or the law of salvage to adjudicate the disputes before them. See, e.g., Platoro, Ltd. Inc. v. Unidentified Remains of a Vessel, 614 F.2d 1051 (5th Cir.), certiorari denied, 449 U.S. 901, 101 S.Ct. 272, 66 L.Ed.2d 131 (1980); Treasure Salvors, Inc. v. Unidentified Wrecked & Abandoned Sailing Vessel, 569 F.2d 330 (5th Cir.1978); Martha’s Vineyard Scuba Headquarters, Inc. ¶. Unidentified, Wrecked & Abandoned Steam Vessel, 833 F.2d 1059 (1st Cir.1987). Courts also had specifically held that any applicable state regulation was pre-empted by admiralty principles. See, e.g., Cobb Coin Co. v. Unidentified, Wrecked & Aban doned Sailing Vessel, 525 F.Supp. 186 (S.D.Fla.1981), contra, Subaqueous Exploration & Archaeology, Ltd. v. Unidentified, Wrecked & Abandoned Vessel, 577 F.Supp. 597 (D.Md.1983), affirmed without opinion, 765 F.2d 139 (4th Cir.1985). Senator Bill Bradley, sponsor of the Senate bill, expressed a concern that “[u]nder the current system, Federal courts — sitting in admiralty — have substantial policymaking power, which has resulted in uneven judgments about the historical value of shipwrecks.” 113 Cong.Rec. S. 3988-3989 (March 26, 1987). Congress’ answer was to assert federal ownership of certain shipwrecks and simultaneously transfer title of those wrecks to the states for administration, management and regulation. In Section 6(a) of the ASA the United States claims title to all abandoned shipwrecks either embedded in the submerged" }, { "docid": "4828283", "title": "", "text": "the abandoned property is embedded in the land, it belongs to the owner of the land.” Zych, 19 F.3d at 1141 n. 2 (citing Klein v. Unidentified Wreck & Abandoned Sailing Vessel, 758 F.2d 1511, 1514 (11th Cir.1985)). There has, however, been some disagreement among the courts as to whether application of the law of finds or salvage to a shipwreck is proper. See Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel Nuestra Senora de Atocha, 569 F.2d 330, 337 (5th Cir.1978) (application of salvage law to shipwreck “stretches a fiction to absurd lengths”); and Klein v. Unidentified Wrecked and Abandoned Sailing Vessel, 758 F.2d 1511, 1514 (11th Cir.1985) (rejecting maritime law and applying common law of finds to determine ownership of abandoned shipwreck). “Where the owner has abandoned the ship, however, recent doctrine applies the law of finds, vesting title in the finder of the ship.” Fairport Intern. Exploration, Inc. v. Shipwrecked Vessel, Captain Lawrence, 177 F.3d 491, 498 (6th Cir.1999) (citing cases). As such, whether the sunk en ship was abandoned determined which law applied, as well as who owns the ship. Fairport, 177 F.3d at 498. Further, “admiralty courts recognize a presumption against finding abandonment” to protect the property rights of owners. Id. The ASA, enacted in 1987, displaces the maritime laws of finds and salvage with regard to any abandoned and embedded shipwreck. 43 U.S.C. § 2106(a) (“the law of salvage and the law of finds shall not apply to abandoned shipwrecks to which section 2105 of this title applies.”). Specifically, under the ASA, The United States asserts title to any abandoned shipwreck that is: (1) embedded in submerged lands of a State; (2) embedded in coralline formations protected by a State on submerged lands of a State or; (3) on submerged lands of a State and is included or determined eligible for inclusion in the National Register. 43 U.S.C. § 2105(a). Such title of the United States to an abandoned shipwreck is then “transferred to the State in or on whose submerged lands the shipwreck is located.” 43 U.S.C. § 2105(c). Accordingly, provided" }, { "docid": "15123616", "title": "", "text": "of admiralty apply one to the exclusion of the other, as appropriate, to resolve claims in property discovered and recovered in navigable waters by those other than the property’s owners or those taking through them. See Columbus-America Discovery Group v. Atlantic Mut. Ins. Co., 974 F.2d 450, 459-60 (4th Cir.1992). Under the law of finds, a person, who discovers a shipwreck in navigable waters that has been long lost and abandoned and who reduces the property to actual or constructive possession, becomes the property’s owner. See Martha’s Vineyard Scuba Headquarters, Inc. v. The Unidentified, Wrecked and Abandoned Steam Vessel, 833 F.2d 1059, 1065 (1st Cir.1987); Hener v. United States, 525 F.Supp. 350, 354-57 (S.D.N.Y.1981) (cited and quoted with approval in Columbus-America Discovery, 974 F.2d at 460). Because the law of finds deprives the true owner of a property right, the courts of admiralty disfavor its application and prefer to apply the law of salvage in its stead. They have reasoned that the law of salvage better serves the needs of maritime commerce by encouraging the saving of property for the benefit of its owner rather than the secretive discovery of property in an effort to deprive the owner of title. See Columbus-America Discovery, 974 F.2d at 464; Hener, 525 F.Supp. at 354 (“salvage law assumes that the property being salved is owned by another, and thus that it has not been abandoned”). Accordingly, the law of finds is most often applied in the context of long-lost shipwrecks. See, e.g., Treasure Salvors, Inc. v. The Unidentified Wrecked & Abandoned Sailing Vessel, 569 F.2d 330, 337 (5th Cir.1978) (applying the law of finds to the recovery of a Spanish vessel which sunk near the Florida Keys in 1622, stating that “disposition of a wrecked vessel whose very location has been lost for centuries as though its owner were still in existence stretches the fiction to absurd lengths”); see also 3A Benedict on Admiralty § 158, at 11-17 (7th ed. Supp.1991) (recommending “limit[ing] the doctrine of ‘find’ relative to marine disasters to long-lost wrecks ... or where the owners of maritime properties have" }, { "docid": "2521872", "title": "", "text": "Abandoned Vessel, 577 F.Supp. 597 (D.Md.1983); cf., Platoro Ltd., Inc. v. Unidentified Remains of a Vessel, 695 F.2d 893, 898-901 (5th Cir.) (waiver of Eleventh Amendment immunity), cert. denied, 464 U.S. 818, 104 S.Ct. 77, 78 L.Ed.2d 89 (1983); Riebe v. Unidentified, Wrecked and Abandoned 18th Century Shipwreck, 691 F.Supp. 923, 926 (E.D.N.C.1987); Chance v. Certain Artifacts Found and Salvaged from the Nashville, 606 F.Supp. 801, 803-04 (S.D.Ga.1984) (waiver of Eleventh Amendment immunity), aff'd, 775 F.2d 302 (11th Cir.1985). 5. In light of this authority, JWI has challenged the basis on which the State has asserted title to the property. JWI contends that the law relied upon by the State is pre-empted by federal maritime law. Specifically, Plaintiff relies on Cobb Coin Co. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 525 F.Supp. 186 (S.D.Fla.1981) (Cobb Coin I), for the proposition that “Florida’s licensing scheme and the criminal penalties imposed for noncompliance therewith conflict impermissibly with federal maritime principles____” Id. at 200. JWI’s invocation of the pre-emption doctrine must fail for two reasons. First, under controlling precedent in this Circuit, the resolution of a claim to ownership and full possession of an historic shipwreck must be based on the application of the common law of finds. Second, even assuming arguendo that the law of finds does not apply here, the state regulatory scheme would not be preempted by federal maritime principles. 6. As stated by the First Circuit, “there is a generic question as to when the law of finds ... applies to property retrieved from the ocean floor, and when the law of salvage pertains____ [T]he better-reasoned authorities agree that the law of finds may appropriately be utilized.” Martha’s Vineyard Scuba Headquarters, Inc. v. Unidentified Wrecked and Abandoned Steam Vessel, 833 F.2d 1059, 1065 (1st Cir.1987) (citations omitted). The former Fifth Circuit Court of Appeals has held that it is appropriate to apply the law of finds rather than the law of salvage for two general reasons. First, the court recognized that salvage law is premised on the notion that the owner of property abandoned at sea has not been" }, { "docid": "4828282", "title": "", "text": "ownership interest in the ship; a salvor receives a salvage award, but not title to the ship.” Fairport, 177 F.3d at 498 (citing Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 640 F.2d 560, 567 (5th Cir.1981)). If a salvor satisfies three elements for a valid salvage claim, including (1) maritime peril; (2) voluntary service rendered without an existing duty or contract; and (3) success, such that the salvor’s efforts contributed to saving the salvaged property, the court may order the vessel’s owner to pay the salvor a salvage award. Zych, 19 F.3d at 1141. With regard to the law of finds, abandoned property does not have an owner. Ray Andrews Brown, The Law on Personal Property, § 8 (2d ed.1955). The common law of finds, expresses “the ancient and honorable principle of ‘finders, keepers.’ ” Martha’s Vineyard Scuba HQ v. Unidentified Vessel, 833 F.2d 1059, 1065 (1st Cir.1987). “Typically, the finder of the abandoned property acquires title to it. But, the law of finds contains an exception to this general rule. When the abandoned property is embedded in the land, it belongs to the owner of the land.” Zych, 19 F.3d at 1141 n. 2 (citing Klein v. Unidentified Wreck & Abandoned Sailing Vessel, 758 F.2d 1511, 1514 (11th Cir.1985)). There has, however, been some disagreement among the courts as to whether application of the law of finds or salvage to a shipwreck is proper. See Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel Nuestra Senora de Atocha, 569 F.2d 330, 337 (5th Cir.1978) (application of salvage law to shipwreck “stretches a fiction to absurd lengths”); and Klein v. Unidentified Wrecked and Abandoned Sailing Vessel, 758 F.2d 1511, 1514 (11th Cir.1985) (rejecting maritime law and applying common law of finds to determine ownership of abandoned shipwreck). “Where the owner has abandoned the ship, however, recent doctrine applies the law of finds, vesting title in the finder of the ship.” Fairport Intern. Exploration, Inc. v. Shipwrecked Vessel, Captain Lawrence, 177 F.3d 491, 498 (6th Cir.1999) (citing cases). As such, whether the sunk en ship was abandoned" }, { "docid": "9781102", "title": "", "text": "determined eligible for inclusion in the National Register of Historic Places. This makes it apparent that the notice requirement of Section 6(b) refers only to shipwrecks qualifying for ASA treatment under Section 6(a)(3), those lying on submerged lands but eligible for inclusion in the National Register. . \"Embeddedness” in the ASA is to be “consistent with the recognized exception from the law of finds for shipwrecks embedded in submerged lands of a state.” House Report at 375-376. As used in the context of the law of finds, embed-dedness is a factual question to be established by evidence. See Chance v. Certain Artifacts Found & Salvaged from The Nashville, 606 F.Supp. 801, 807 (S.D.Ga.1984) (court finds “vessel is firmly attached to river bottom” after hearing evidence from expert diver), affirmed without opinion, 775 F.2d 302 (11th Cir.1985); Klein v. Unidentified, Wrecked & Abandoned Sailing Vessel, 568 F.Supp. 1562, 1566 (S.D.Fla.1983) (court finds vessel embedded after hearing uncontradicted testimony and viewing film indicating wreck is substantially buried in land), affirmed, 758 F.2d 1511 (11th Cir.1985). . This assumes no other basis for federal jurisdiction can be found. The parties are not alleged to be diverse. The ASA itself gives finders no cause of action or right to relief. . The elimination of the law of salvage as applied to embedded shipwrecks in particular would destroy a finder’s ability to bring a federal in rem admiralty action. In rem jurisdiction exists when a maritime lien arises. Fed.R.Civ.P. C(l) (Supplemental Rules of Certain Admiralty and Maritime Claims). It is the salvage claim that gives rise to a lien, for the salvage award is secured by the ship itself. Norris, 3A Benedict on Admiralty § 143 (1991). . The law of finds developed at common law but has come to be considered a maritime concept. S.ee Owen, The Abandoned Shipwreck Act of 1987: Goodbye to Salvage in the Territorial Sea, 19 J. of Mar.L. & Comm. 499, 510 (1988). Compare Subaqueous, 577 F.Supp. at 611 (referring to \"maritime law of finds”); Treasure Salvors, 569 F.2d at 336 (law of finds is adjunct to salvage law)," }, { "docid": "4828280", "title": "", "text": "375, 385, 44 S.Ct. 391, 68 L.Ed. 748 (1924)). See also Foremost Insurance Co. v. Richardson, 457 U.S. 668, 674, 102 S.Ct. 2654, 73 L.Ed.2d 300 (1982) (explaining “the primary focus of admiralty jurisdiction is unquestionably the protection of maritime commerce .... ”). Typical admiralty matters include those related to commercial vessels and their operators, involving maritime contracts or torts on navigable waters. Zych v. Unidentified, Wrecked and Abandoned Vessel, Believed to be the SB “Seabird”, 811 F.Supp. 1300, 1307 (N.D.Ill.1992) (citing cases), aff'd, Zych, 19 F.3d 1136 (7th Cir.1994). As such, federal courts have admiralty jurisdiction over claims pursuant to maritime law. See Preston v. Frantz, 11 F.3d 357, 358 (2d Cir.1993) (holding that even if plaintiff asserts diversity as jurisdictional basis, court maintains admiralty jurisdiction over action to which maritime law applies). The exercising of admiralty jurisdiction has generally been extended to shipwreck cases either on the basis of the law of salvage or the law of finds. Treasure Salvors, Inc. v. Unidentified Wrecked & Abandoned Sailing Vessel, 640 F.2d 560, 567-68 (5th Cir.1981) (holding district court had admiralty jurisdiction to entertain salvor’s claim that other salvors were wrongfully interfering with salvage operations of sunken sailing vessel under maritime laws of salvage and finds). See also Fairport International Exploration, Inc. v. The Shipwrecked Vessel Captain Lawrence (heretofore, “Fairport”), 177 F.3d 491, 498 (6th Cir.1999) (observing that historically, many courts have allowed those wishing to assert a right to a sunken ship to proceed pursuant to the maritime law of either salvage or finds). “Salvage is a reward given to persons who save or rescue a ship or a ship’s goods from shipwreck, fire, or capture.” Zych, 19 F.3d at 1141 (citing Cope v. Vallette Dry Dock Co., 119 U.S. 625, 628, 7 S.Ct. 336, 30 L.Ed. 501 (1887); and The “Sabine” 101 U.S. 384, 25 L.Ed. 982 (1880)). The law of salvage “originally developed to offer economic incentives to seamen observing ships and cargo in immediate marine peril to undertake rescue efforts.” Zych, 811 F.Supp. at 1307. “The law of salvage applies when the original owner retains an" }, { "docid": "2521873", "title": "", "text": "precedent in this Circuit, the resolution of a claim to ownership and full possession of an historic shipwreck must be based on the application of the common law of finds. Second, even assuming arguendo that the law of finds does not apply here, the state regulatory scheme would not be preempted by federal maritime principles. 6. As stated by the First Circuit, “there is a generic question as to when the law of finds ... applies to property retrieved from the ocean floor, and when the law of salvage pertains____ [T]he better-reasoned authorities agree that the law of finds may appropriately be utilized.” Martha’s Vineyard Scuba Headquarters, Inc. v. Unidentified Wrecked and Abandoned Steam Vessel, 833 F.2d 1059, 1065 (1st Cir.1987) (citations omitted). The former Fifth Circuit Court of Appeals has held that it is appropriate to apply the law of finds rather than the law of salvage for two general reasons. First, the court recognized that salvage law is premised on the notion that the owner of property abandoned at sea has not been divested of title. Treasure Salvors, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 569 F.2d 330, 336 (5th Cir.1978) (Treasure Salvors I); see also Klein v. Unidentified, Wrecked and Abandoned Sailing Vessel, 758 F.2d 1511, 1514 (11th Cir.1985); Chance, 606 F.Supp. at 804; Subaquaeous Explorations, 577 F.Supp. at 611; Klein v. Unidentified, Wrecked and Abandoned Sailing Vessel, 568 F.Supp. 1562, 1565 (S.D.Fla.1983), aff'd, 758 F.2d 1511 (11th Cir.1985). Yet, it found that “[disposition of a wrecked vessel whose very location has been lost for centuries as though its owner were still in existence stretches a fiction to absurd lengths.” Treasure Salvors I, 569 F.2d at 337. Second, application of the laws of finds and salvage do not produce inconsistent results. If the owner of the vessel is actually in existence a salvage award is meant to fully compensate the salvor for his efforts, and “may include the entire derelict property.” Id. at 337 (footnote omitted). But, if the property has actually been abandoned by the owner, then the law of finds rewards the first finder" }, { "docid": "4828281", "title": "", "text": "Cir.1981) (holding district court had admiralty jurisdiction to entertain salvor’s claim that other salvors were wrongfully interfering with salvage operations of sunken sailing vessel under maritime laws of salvage and finds). See also Fairport International Exploration, Inc. v. The Shipwrecked Vessel Captain Lawrence (heretofore, “Fairport”), 177 F.3d 491, 498 (6th Cir.1999) (observing that historically, many courts have allowed those wishing to assert a right to a sunken ship to proceed pursuant to the maritime law of either salvage or finds). “Salvage is a reward given to persons who save or rescue a ship or a ship’s goods from shipwreck, fire, or capture.” Zych, 19 F.3d at 1141 (citing Cope v. Vallette Dry Dock Co., 119 U.S. 625, 628, 7 S.Ct. 336, 30 L.Ed. 501 (1887); and The “Sabine” 101 U.S. 384, 25 L.Ed. 982 (1880)). The law of salvage “originally developed to offer economic incentives to seamen observing ships and cargo in immediate marine peril to undertake rescue efforts.” Zych, 811 F.Supp. at 1307. “The law of salvage applies when the original owner retains an ownership interest in the ship; a salvor receives a salvage award, but not title to the ship.” Fairport, 177 F.3d at 498 (citing Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 640 F.2d 560, 567 (5th Cir.1981)). If a salvor satisfies three elements for a valid salvage claim, including (1) maritime peril; (2) voluntary service rendered without an existing duty or contract; and (3) success, such that the salvor’s efforts contributed to saving the salvaged property, the court may order the vessel’s owner to pay the salvor a salvage award. Zych, 19 F.3d at 1141. With regard to the law of finds, abandoned property does not have an owner. Ray Andrews Brown, The Law on Personal Property, § 8 (2d ed.1955). The common law of finds, expresses “the ancient and honorable principle of ‘finders, keepers.’ ” Martha’s Vineyard Scuba HQ v. Unidentified Vessel, 833 F.2d 1059, 1065 (1st Cir.1987). “Typically, the finder of the abandoned property acquires title to it. But, the law of finds contains an exception to this general rule. When" }, { "docid": "1716463", "title": "", "text": "Inc. v. Unidentified Wrecked and Abandoned Steam Vessel, 833 F.2d 1059, 1065 (1st Cir.1987); Jupiter Wreck, 691 F.Supp. at 1385; Chance, 606 F.Supp. at 804; Subaqueous, 577 F.Supp. at 611. A salvage award provides an incentive to salvors and thus helps to protect the owner of the property against the loss of that property. See Jupiter Wreck, 691 F.Supp. at 1388. To apply the law of salvage, however, by creating the fiction of continuing ownership even after the property has long been abandoned is rather absurd, especially when the law of finds provides a rational method for determining rights in the property. See Treasure Salvors, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 569 F.2d 330, 336 (5th Cir.1978); Jupiter Wreck, 691 F.Supp. at 1385. In any event, it appears that application of the law of salvage would often lead to the same result. Under the law of salvage, the owner of the vessel may reject the salvage services, in which event the salvor is not entitled to an award. See Platoro, 695 F.2d at 901-02. In enacting § 2106, Congress specifically rejected salvage services on the vessels subject to the ASA. Furthermore, it is reasonable to interpret state preservation statutes which limit the ability of divers and salvors to explore or excavate abandoned shipwrecks as expressing a rejection of salvage services. . Section 2105(b) provides: The public shall be given adequate notice of the location of any shipwreck to which title is asserted under this section. The Secretary of the Interior, after consultation with the appropriate State Historic Preservation Officer, shall make a written determination that an abandoned shipwreck meets the criteria for eligibility for inclusion in the National Register of Historic Places under clause (a)(3). (Emphasis added.) It might be argued that the ASA does not apply to a given shipwreck if the United States or the applicable state has not \"asserted” title to the wreck nor given any public notice of its location. Plaintiff, however, does not raise this issue and the Court thus does not reach it. . No congressional enactment has yet been struck down" }, { "docid": "11407847", "title": "", "text": "337, 30 L.Ed. 501 (1887); The “Sabine”, 101 U.S. (11 Otto) 384, 25 L.Ed. 982 (1880). Three elements are necessary to a valid salvage claim: (1) marine peril; (2) voluntary service rendered outside the context of an existing duty or contract; and (3) success by the salvor such that the salvors’ efforts at least contributed to saving the salvaged property. Id. at (11 Otto) 384; Klein v. Unidentified Wrecked & Abandoned Sailing Vessel, 758 F.2d 1511, 1515 (11th Cir.1985). If a salvor satisfies these elements, a court may order the owner of the vessel to pay. the salvor some amount of money, which would be the .salvage award. The language of section 2106(a) says that the law of salvage shall no longer apply to abandoned shipwrecks. In fact, in a remarkable twist, this provision of the ASA has no effect on the law of salvage because the law of salvage does not apply to abandoned shipwrecks. Columbus-America Discovery v. Atlantic Mut. Ins., 974 F.2d 450, 459 (4th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1625, 123 L.Ed.2d 183 (1993); Chance v. Certain Artifacts Found and Salvaged, 606 F.Supp. 801, 804 (S.D.Ga.1984), aff'd by unpublished decision, 775 F.2d 302 (11th Cir.1985). The law of salvage assumes that the salvaged property is owned by someone other than the salvor. Hener v. United States, 525 F.Supp. 350, 356 (S.D.N.Y.1981). There must be some owner — here, apparently Illinois — that the salvor can obtain a salvage award from. Otherwise, the property is abandoned and the law of finds applies. The ASA, by its terms, only applies to abandoned property — specifically, certain abandoned shipwrecks. Zych, the ASA, and the law of finds all agree that Illinois owns the Seabird. Zych’s suit is really a suit against Illinois because Zych seeks a salvage award from Illinois. As such, his suit implicates the Eleventh Amendment, which provides that “[t]he 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" }, { "docid": "1716421", "title": "", "text": "of the Lady Elgin and the Seabird, it does not purport to give the State an ownership interest in those remains. b. Common Law and the Submerged Lands Act The Submerged Lands Act, 43 U.S.C. § 1311, makes clear that the states have title to all lands and natural resources beneath navigable waters within the boundaries of the respective states. The State relies in part on this Act itself for its ownership claim, contending that the shipwrecks are “natural resources.” The Court is unwilling to engage in such a stretch of the meaning of “natural resource;” a shipwreck is not “natural.” Cf. Cobb Coin Co. v. Unidentified, Wrecked and Abandoned Sailing Vessel (“Cobb Coin I”), 525 F.Supp. 186, 214-16 (S.D.Fla.1981) (Act applies only to natural resources and does not give states authority to assert claims over shipwrecks); Commonwealth v. Maritime Underwater Surveys, Inc., 403 Mass. 501, 531 N.E.2d 549, 552-53 (1988) (Submerged Lands Act did not give state title to shipwrecks). The Act does, however, prove instrumental in giving the State a colorable ownership interest in the shipwrecks by making clear that the lake bed on which the shipwrecks lie belongs to the State. With ownership of the lake bed established, the common law of finds gives the State a colorable claim of ownership to the shipwrecks found on that lake bed. The law of finds generally provides that the first finder to take possession of lost or abandoned property with the intention to exercise control over it acquires title. See Klein v. Unidentified Wrecked and Abandoned Sailing Vessel, 758 F.2d 1511, 1514 (11th Cir.1985); Jupiter Wreck, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 691 F.Supp. 1377, 1386 (S.D.Fla.1988); Chance v. Certain Artifacts Found and Salvaged from the Nashville, 606 F.Supp. 801, 804 (S.D.Ga.1984), aff'd mem., 775 F.2d 302 (11th Cir.1985). An exception applies, however, to vest title in the owner of the land if the property is found embedded in the land. Klein, 758 F.2d at 1514; Jupiter Wreck, 691 F.Supp. at 1386; Chance, 606 F.Supp. at 805. Abandoned shipwrecks are generally considered to be “embedded” in the" }, { "docid": "19384308", "title": "", "text": "evaluation consistent with the requirements of the ASA and maritime law. The Supreme Court remanded the Brother Jonathan case “[i]n light of [the Court’s] ruling that the Eleventh Amendment does not bar complete adjudication of the competing claims to the Brother Jonathan in federal court-” Ibid, (emphasis added). Thus, we remand this ease to the district court for complete adjudication of the competing claims to the Captain Lawrence. We write to guide the district court in its consideration of two issues: the means of proving abandonment, and the burden of proof placed upon Michigan. B. Abandonment Under maritime law, those who wish to raise sunken ships are governed by either the law of salvage or the law of finds. The law of salvage applies when the original owner retains an ownership interest in the ship; a salvor receives a salvage award, but not title to the ship. See, e.g., Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 640 F.2d 560, 567 (5th Cir.1981). Where the owner has abandoned the ship, however, recent doctrine applies the law of finds, vesting title in the finder of the ship. See Columbus-America, 974 F.2d at 464; Martha’s Vineyard Scuba Headquarters, Inc. v. Unidentified, Wrecked and Abandoned Steam Vessel, 833 F.2d 1059, 1064-65 (1st Cir.1987); Treasure Salvors, 640 F.2d at 567. Whether the owner abandoned the ship thus determines which law applies, and, subsequently, who owns the ship. Intent on protecting the property rights of owners, admiralty courts recognize a presumption against finding abandonment. See, e.g., Hener v. United States, 525 F.Supp. 350, 356-57 (S.D.N.Y.1981). The 1987 passage of the ASA altered this approach. The ASA transfers to a State the title to all abandoned shipwrecks embedded in the submerged lands of the State. See 43 U.S.C. § 2105. The ASA expressly rejects the application of the maritime laws of salvage and finds. See 43 U.S.C. § 2106(a) (“The law of salvage and the law of finds shall not apply to abandoned shipwrecks to which section 2105 of this title applies.”). If a diver now discovers a long-lost ship embedded in the submerged" }, { "docid": "2521874", "title": "", "text": "divested of title. Treasure Salvors, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 569 F.2d 330, 336 (5th Cir.1978) (Treasure Salvors I); see also Klein v. Unidentified, Wrecked and Abandoned Sailing Vessel, 758 F.2d 1511, 1514 (11th Cir.1985); Chance, 606 F.Supp. at 804; Subaquaeous Explorations, 577 F.Supp. at 611; Klein v. Unidentified, Wrecked and Abandoned Sailing Vessel, 568 F.Supp. 1562, 1565 (S.D.Fla.1983), aff'd, 758 F.2d 1511 (11th Cir.1985). Yet, it found that “[disposition of a wrecked vessel whose very location has been lost for centuries as though its owner were still in existence stretches a fiction to absurd lengths.” Treasure Salvors I, 569 F.2d at 337. Second, application of the laws of finds and salvage do not produce inconsistent results. If the owner of the vessel is actually in existence a salvage award is meant to fully compensate the salvor for his efforts, and “may include the entire derelict property.” Id. at 337 (footnote omitted). But, if the property has actually been abandoned by the owner, then the law of finds rewards the first finder with title and possession. Courts have applied the law of finds to cases concerning historic shipwrecks where the res lay outside of state territorial waters, see Klein, 568 F.Supp. 1562, 1565-68 (S.D.Fla.1983), aff'd, Klein, 758 F.2d at 1514; Treasure Salvors, Inc. v. Abandoned Sailing Vessel Believed To Be The Nuestra Señora de Atocha, 408 F.Supp. 907, 909 (S.D.Fla.1976), aff'd, 569 F.2d 330, 337 (5th Cir.1978), or when the state has waived its Eleventh Amendment immunity. See, e.g., Chance, 606 F.Supp. at 804-08. Accordingly, the present case presents a somewhat different factual scenario because the res is on state territory and there has been no waiver. Nonetheless we remain convinced that even if the Eleventh Amendment did not bar adjudication of title in this case, by application of the law of finds, JWI has no likelihood of success on its claim for title or full possession. 7.The State’s claim to title of the res is based on federal and state statutes, as well as the Florida Constitution. The Florida Constitution delineates the State boundaries and declares" } ]

[ { "docid": "22851174", "title": "", "text": "... handling of a case”); In re Sandel, 64 Cal.2d 412, 50 Cal.Rptr. 462, 412 P.2d 806, 810 (1966) (“The correction of an act of sentencing in excess of jurisdiction of the court is just as much of a judicial function as the act of sentencing itself, and is likewise beyond the authority of ... any other administrative body.”). Second, to the extent Cousins faults the AG for failing to maintain an institutionalized information system for tracking all California appellate decisions with a direct bearing on individual prisoners’ convictions (an obligation for which Cousins cites no legal authority), the Supreme Court has indicated that, even if properly characterized as an attack on an office’s administrative procedures, such a challenge does not strip a supervising prosecutor of absolute immunity. See Van de Kamp, 129 S.Ct. at 861-64. Rather, supervising prosecutors retain absolute immunity regarding decisions to create information management systems where, as here, “determining the criteria for inclusion or exclusion requires knowledge of the law,” and where, as here, the information is relevant only insofar as it relates to the prosecution of a particular case — in this instance, the AG’s distinctly prosecutorial function of going to the sentencing court to undo Cousins’ conviction. See id. at 862-64. As a result, we hold that the district court properly granted the AG prosecutorial immunity from Cousins’ § 1983 claims. 2. Qualified Immunity for the Remaining Defendants Cousins next argues that the district court erred in determining that the remaining defendants are entitled to qualified immunity from the federal claims on the ground that he cannot show that any constitutional right that may have been violated was clearly established in law. Qualified immunity protects government officials from civil liability if “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). We consider qualified immunity using the two-step inquiry set forth in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). First, we decide whether the alleged" } ]

[ { "docid": "14885654", "title": "", "text": "78, 219 Cal.Rptr. 150, 707 P.2d 212 (1985). Consistent with this interpretation, several federal courts have concluded that a public school constitutes a “business establishment” within the meaning of the Unruh Civil Rights Act. See, e.g., Nicole M., 964 F.Supp. at 1388; Sullivan v. Vallejo City Unified Sch. Dist., 731 F.Supp. 947, 952 (E.D.Cal.1990). Moreover, several federal courts have concluded that a plaintiffs allegation that a public school failed to adequately respond to his or her complaints of harassment gives rise to a cognizable claim under the Unruh Civil Rights Act. See Davison v. Santa Barbara High Sch. Dist., 48 F.Supp.2d 1225, 1232-33 (C.D.Cal.1998); Nicole M., 964 F.Supp. at 1388. This Court follows the lead of those courts. Accordingly, for the reasons discussed in relation to Walsh’s federal equal protection claim for failure to investigate and discipline harassment, the motion to dismiss Walsh’s claims under the Unruh Civil Rights Act is DENIED as to Ortega and Kaminski, but GRANTED with leave to amend as to Kirby, Haight, Kabonic, and Feehan. Further, in accordance with California law regarding vicarious liability, the motion to dismiss is DENIED as to the School District, see Cal. Gov.Code § 815.2(a) (a public entity is vicariously liable for injuries caused by the acts of its employees), but GRANTED with leave to amend as to Swanson, see Cal. Gov.Code § 820.8 (a public employee is not vicariously liable for injuries that are caused by the acts of another person). 3. California’s Equal Protection Provision Walsh asserts a claim for damages against the School District pursuant to the equal protection provision of the California Constitution. See Cal. Const., Art. I § 7. However, as the School District suggests in its motion to dismiss, “[i]t is beyond question that a plaintiff is not entitled to damages for a violation of the ... equal protection clause of the [California] state Constitution.” Javor v. Taggart, 98 Cal.App.4th 795, 807, 120 Cal.Rptr.2d 174 (2002). See Gates v. Superior Court, 32 Cal.App.4th 481, 516-24, 38 Cal.Rptr.2d 489 (1995) (concluding that there is no evidence of any intent on the part of California’s voters" }, { "docid": "14885620", "title": "", "text": "ORDER ON DEFENDANTS’ MOTIONS TO DISMISS LAWRENCE J. O’NEILL, District Judge. Pending before the Court are Defendants’ motions to dismiss. Defendants Tehachapi Unified School District (“School District”), Superintendent Richard Swanson (“Swanson”), Principal Susan Ortega (“Ortega”), and Vice Principal Paul Kaminski (“Kaminski”) filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Similarly, Defendants Shari Kabonic (“Kabonic”), Laura Haight (“Haight”), Annette Kirby (“Kirby”), and Martin Feehan (“Feehan”) filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff Wendy Walsh (“Walsh”) has opposed the motions. Upon careful consideration of the parties’ submissions and the entire record in this case, the Court GRANTS IN PART and DENIES IN PART Defendants’ motions. I. BACKGROUND Walsh is the mother and successor-in-interest of Seth Walsh (“Decedent”), a thirteen-year-old boy who committed suicide in September 2010. (Doc. 1-3, Am. Compl., ¶¶4, 51.) Swanson, Ortega, and Kaminski are the Superintendent of the School District, the principal of Jacobsen Middle School, and the vice principal of Jacobsen Middle School, respectively. (Id. ¶¶ 8-10.) Kirby, Haight, Kabonic, and Feehan are all teachers at Jacobsen Middle School. (Id. ¶¶ 11-14.) Walsh alleges the following regarding the circumstances surrounding her son’s death. Decedent was homosexual, and in the beginning of the sixth grade, Decedent informed others of his sexual orientation. (Id. ¶ 6.) As a result, many students at Jacobsen Middle School were openly hostile to Decedent. (Id. ¶ 19.) Some students routinely called Decedent derogatory names such as “faggot,” “pussy,” “pansy,” and “sissy.” (Id. ¶¶ 18-19.) Other students expressed disgust at Decedent and told him to “burn in hell” or “kill himself.” (Id. ¶ 18.) Oftentimes Decedent was pushed into the lockers by his peers. (Id. ¶ 19.) At the end of Decedent’s sixth grade, Walsh met with Kaminski to express concern over the harassment. (Id. ¶ 21.) Kaminski indicated that he was aware of the harassment; faculty and students generally perceived Decedent to be homosexual. (Id. ¶¶ 6, 21.) Kaminski, however, did not take any remedial action. (Id. ¶ 21.) Kaminski explained that “in a perfect world” Decedent would be treated equally, but" }, { "docid": "14885642", "title": "", "text": "Kabonic sexually harassed Decedent in violation of the Equal Protection Clause, the claim is DISMISSED with leave to amend. d. Substantive Due Process— Familial Relationships The Ninth Circuit recognizes that a parent has a Fourteenth Amendment liberty interest in the companionship and society of his or her child. Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir.2010). A deprivation of that interest may arise to a violation of the substantive component of the Due Process Clause. See Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 371 (9th Cir.1998). To prevail on such a claim, a plaintiff must show that the defendant’s conduct in causing the deprivation “shocks the conscience.” Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir.2008). “What state of mind shocks the conscience depends on the circumstances of a particular case.” Provencio v. Vazquez, 258 F.R.D. 626, 640 (E.D.Cal.2009) (citation omitted). Mere negligence, however, is never enough. Woodrum v. Woodward County, 866 F.2d 1121, 1126 (9th Cir.1989) (citing Daniels v. Williams, 474 U.S. 327, 330-32, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)). i. Superintendent Swanson As explained above, Walsh fails to allege any facts relating to Swanson. Accordingly, Walsh’s deprivation of familial relationships claim against Swanson is DISMISSED with leave to amend. See Monell, 436 U.S. at 691, 98 S.Ct. 2018 (no vicarious liability under § 1983); Iqbal, 129 S.Ct. at 1949 (“To survive a motion to dismiss, a complaint must contain sufficient factual matter ... to state a claim for relief that is plausible on its face.”) (internal quotation marks and citation omitted). ii. Principal Ortega, Vice Principal Kaminski, and Teachers Kirby, Haight, Kabonic, and Feehan The remaining defendants move to dismiss this claim on the ground that Decedent’s decision to commit suicide acted as an independent, superceding event that severed any liability on the part of the defendants for Decedent’s death. (Doc. 7 at 20; Doc. 8 at 20-21.) The defendants stress the following facts in this regard: (1) Decedent committed suicide over two weeks after he left school; (2) Decedent decided to commit suicide only after being harassed on non-school property; and (3)" }, { "docid": "14885653", "title": "", "text": "against all the defendants pursuant to the Unruh Civil Rights Act. See Cal. Civ.Code § 51(a). The Unruh Civil Rights Act provides a cause of action for intentional discrimination by a business establishment. See Cohn v. Corinthian Colleges, Inc., 169 Cal.App.4th 523, 527-28, 86 Cal.Rptr.3d 401 (2008). California Civil Code section 51 provides, in relevant part: “[a]ll persons within the jurisdiction of this state are free and equal, and no matter what their ... sexual orientation [may be] are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” Cal. Civ.Code § 51(b). Similarly, California Civil Code section 51.5 provides, in relevant part: “[n] o business establishment of any kind whatsoever shall discriminate against ... any person in this state on account of [that person’s sexual orientation].” Cal. Civ.Code § 51.5. The California Supreme Court has determined that the Legislature intended the term “business establishment” to be interpreted “in the broadest sense reasonably possible.” Isbister v. Boys’ Club of Santa Cruz, Inc., 40 Cal.3d 72, 78, 219 Cal.Rptr. 150, 707 P.2d 212 (1985). Consistent with this interpretation, several federal courts have concluded that a public school constitutes a “business establishment” within the meaning of the Unruh Civil Rights Act. See, e.g., Nicole M., 964 F.Supp. at 1388; Sullivan v. Vallejo City Unified Sch. Dist., 731 F.Supp. 947, 952 (E.D.Cal.1990). Moreover, several federal courts have concluded that a plaintiffs allegation that a public school failed to adequately respond to his or her complaints of harassment gives rise to a cognizable claim under the Unruh Civil Rights Act. See Davison v. Santa Barbara High Sch. Dist., 48 F.Supp.2d 1225, 1232-33 (C.D.Cal.1998); Nicole M., 964 F.Supp. at 1388. This Court follows the lead of those courts. Accordingly, for the reasons discussed in relation to Walsh’s federal equal protection claim for failure to investigate and discipline harassment, the motion to dismiss Walsh’s claims under the Unruh Civil Rights Act is DENIED as to Ortega and Kaminski, but GRANTED with leave to amend as to Kirby, Haight, Kabonic, and Feehan. Further, in accordance with California" }, { "docid": "14885670", "title": "", "text": "or intent, or when [the conduct] involves reckless or callous indifference to the ... rights of others.” Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983). Conduct that is shown to be “oppressive” will also suffice. Dang v. Cross, 422 F.3d 800, 807-08 (9th Cir.2005). Here, as explained above, the Court finds that Walsh states cognizable claims under § 1983 against Ortega and Kaminski for, among other things, responding with deliberate indifference to Decedent’s complaints of sexual harassment. Moreover, Walsh alleges that in violating Decedent’s constitutional rights, the defendants acted maliciously and with conscious disregard to the rights of Decedent. (Doc. 1-4 ¶¶ 71, 77.) At this juncture, the Court finds this sufficient to support Walsh’s prayer for punitive damages. Accordingly, the motions to dismiss are DENIED on this matter. D. OTHER MATTERS Finally, the Court notes that Kirby, Haight, Kabonic, and Feehan move to dismiss the claims asserted against them on other grounds. Specifically, Kirby, Haight, and Kabonic argue that their stray remarks are protected speech under the First Amendment. (Doc. 8 at 12-13.) Kirby, Haight, Kabonic, and Feehan also argue that Walsh fails to allege compliance with the presentation requirement of the California Torts Claims Act. (Id. at 21-22.) Because the Court has already concluded that Walsh fails to allege sufficient facts to state any cognizable claims against Kirby, Haight, Kabonic, or Feehan, the Court declines to address these alternative arguments at this time. IV. CONCLUSION In accordance with the above, this Court: 1. GRANTS IN PART and DENIES IN PART the motions to dismiss as follows: a. The Title IX teacher-on-student harassment claim against the School District is DISMISSED with leave to amend; b. All claims against Swanson are DISMISSED with leave to amend; c. The motion to dismiss Walsh’s equal protection claims under the Fourteenth Amendment for failure to investigate and discipline harassment is DENIED as to Ortega and Kaminski; d. The equal protection claims under the Fourteenth Amendment against Feehan, Kirby, Haight, and Kabonic for failure to investigate and discipline harassment are DISMISSED with leave to amend; e. The equal" }, { "docid": "14885647", "title": "", "text": "whether it is reasonably foreseeable that the claimed constitutional violation would cause a mental state that could negate the plaintiffs volition. Second, whether the plaintiffs mental state was actually such that he could not appreciate the nature of his acts upon committing suicide is often a question of fact. Third, if the facts establish that the plaintiff could not appreciate the nature of his acts, the suicide does not constitute a superceding, intervening event, and the defendants may be held liable for injuries sustained as a result of the suicide. Returning to the matter at hand, the Court finds that Walsh has alleged facts sufficient to show proximate cause, at least at this juncture. Construing all the allegations in the light most favorable to Walsh, it is reasonably foreseeable that the alleged failure by school administrators in addressing and remedying Decedent’s repeated complaints of severe sexual orientation based harassment over a two-year period would cause a mental condition such that Decedent (a thirteen-year-old boy) would have suicidal impulses. Whether Decedent in fact developed such a mental condition or whether there was a superceding event that caused Decedent to commit suicide (i.e., the harassment on the actual day of the suicide, which occurred off school property) is a matter for another day. See Soto, 567 F.Supp. at 694. Accordingly, the motion to dismiss Walsh’s claim for the deprivation of a familial relationship is DENIED as to Ortega and Kaminski. iii. Teachers Kirby, Haight, Kabonic, and Feehan In addition to contesting proximate cause, Kirby, Haight, Kabonic, and Feehan argue that their alleged actions cannot give rise to a claim for the deprivation of familial relations in violation of the Fourteenth Amendment. (Doc. 8 at 15-16.) The Court agrees with the defendants in this regard. The conduct of Feehan and the alleged comments by Kirby, Haight, and Kabonic do not constitute conduct that “shocks the conscience.” Porter, 546 F.3d at 1137. As explained above, the defendants’ alleged conduct and comments do not even give rise to a cognizable claim for discrimination under the Equal Protection Clause. Accordingly, Walsh’s deprivation of a familial relationship" }, { "docid": "14885672", "title": "", "text": "protection claims under the Fourteenth Amendment against Haight, Kirby, and Kabonic for sexual harassment and discrimination are DISMISSED with leave to amend; f. The motion to dismiss Walsh’s claims under the Fourteenth Amendment for the deprivation of familial relations is DENIED as to Ortega and Kaminski; g. The claims against Krby, Haight, Kabonic, and Feehan for the deprivation of familial relations under the Fourteenth Amendment are DISMISSED with leave to amend; h. The motion to dismiss Walsh’s Unruh Civil Rights Act claims is DENIED as to Ortega and Kaminski; i. The Unruh Civil Rights Act claims against Kirby, Haight, Kabonic, and Feehan are DISMISSED with leave to amend; j. To the extent Walsh asserts a claim under the equal protection provision of the California Constitution, the claim is DISMISSED with prejudice; k. The teacher-on-student harassment claim under California Education Code 220 is DISMISSED with leave to amend; l. The negligence and wrongful death claims against Kirby, Haight, Kabonie, and Feehan are DISMISSED with leave to amend; m. The negligence and wrongful death claims against the School District are: i. DISMISSED with leave to amend to the extent that liability is grounded on vicarious liability for the negligent acts of Krby, Haight, Kabonic, and Freehan; ii. DISMISSED with leave to amend to the extent that liability is grounded on the School District’s failure to discharge its duties under Title IX; and iii. DISMISSED with prejudice to the extent that liability is premised on the School District’s failure to discharge its duties under the equal protection provision of the California Constitution. n. The motions to dismiss Walsh’s claims for bystander emotional distress are DENIED; o. Walsh’s prayer to recover damages for Decedent’s emotional distress as the successor-in-interest is DISMISSED with prejudice; p. The motions to dismiss Walsh’s prayer for medical expenses incurred as a result of Decedent’s suicide are DENIED; and q. The motions to dismiss Walsh’s prayer for punitive damages are DENIED. 2. ORDERS that if Walsh elects to file a second amended complaint, she shall do so by November 11, 2011. Walsh should refrain from filing an amended pleading unless" }, { "docid": "14885637", "title": "", "text": "the complaints, neither Ortega nor Kaminski took any disciplinary action; (3) instead, Kaminski simply responded that “in a perfect world” Decedent would be treated equally despite his sexual orientation; and (4) Ortega’s only solution to the harassment was to have Decedent removed from school. These allegations sufficiently plead discriminatory treatment based on membership in an identifiable class. Accordingly, the motion to dismiss Walsh’s claims under the Equal Protection Clause is DENIED as to Ortega and Kaminski. As to Feehan, the Court finds that Walsh’s allegations fall short of stating a cognizable claim. Walsh’s allegations regarding Feehan provide, in their entirety: “Harassment of Decedent by other students took place during study hall and in the boy’s locker room, where teachers, including Defendant Mr. FEEHAN, were present. Said teachers, including [FEE-HAN], took no action to protect Decedent, halt the harassment or remedy the situation.” (Doc. 1-3 ¶ 38.) These allegations are vague and are not far from being a mere “recitation of the elements of the cause of action[.]” Iqbal, 129 S.Ct. at 1949. This is insufficient to state a claim. Id. Accordingly, Walsh’s equal protection claim against Feehan is DISMISSED with leave to amend. iii. Teachers Kirby, Haight, and Kabonic Lastly, Kirby, Haight, and Kabonic argue that Walsh fails to state a cognizable equal protection claim against them because the only allegation Walsh makes as to them is that they made stray remarks about Decedent. (Doc. 8 at 14.) Kirby, Haight, and Kabonic reassert that stray remarks are insufficient to establish discrimination or harassment as a matter of law. (Id.) Walsh fails to plead a cognizable equal protection claim against Kirby, Haight, or Kabonic for failing to investigate or discipline harassment. Walsh’s allegations fall short because there are no facts demonstrating deliberate indifference on the part of the defendants. Walsh does not allege that Kirby, Haight, or Kabonic witnessed or otherwise were aware of specific incidents of harassment faced by Decedent. Nor does Walsh allege that Kirby, Haight, or Kabonic ever received complaints regarding the harassment. At most, Walsh suggests that the defendants knew that Decedent was homosexual and perhaps, as" }, { "docid": "14885638", "title": "", "text": "to state a claim. Id. Accordingly, Walsh’s equal protection claim against Feehan is DISMISSED with leave to amend. iii. Teachers Kirby, Haight, and Kabonic Lastly, Kirby, Haight, and Kabonic argue that Walsh fails to state a cognizable equal protection claim against them because the only allegation Walsh makes as to them is that they made stray remarks about Decedent. (Doc. 8 at 14.) Kirby, Haight, and Kabonic reassert that stray remarks are insufficient to establish discrimination or harassment as a matter of law. (Id.) Walsh fails to plead a cognizable equal protection claim against Kirby, Haight, or Kabonic for failing to investigate or discipline harassment. Walsh’s allegations fall short because there are no facts demonstrating deliberate indifference on the part of the defendants. Walsh does not allege that Kirby, Haight, or Kabonic witnessed or otherwise were aware of specific incidents of harassment faced by Decedent. Nor does Walsh allege that Kirby, Haight, or Kabonic ever received complaints regarding the harassment. At most, Walsh suggests that the defendants knew that Decedent was homosexual and perhaps, as a general matter, faced hostility from other students. This does not arise to a cognizable claim. Accordingly, to the extent that Walsh claims that Kirby, Haight, and Kabonic violated the Equal Protection Clause by failing to investigate or discipline harassment, the claims are DISMISSED with leave to amend. c. Equal Protection — Sexual Harassment Walsh also claims, apparently, that Kirby, Haight, and Kabonic violated the Equal Protection Clause by sexually harassing Decedent. (See Doc. 12 at 6) (“[I]n the present case [Walsh] alleges not only non-feasance in the form of deliberate indifferent [sic], but also affirmative discriminatory conduct and statements by the individual defendants.”). Some circuits have explicitly recognized that sexual harassment by a public official in an educational setting can violate the Equal Protection Clause and is cognizable under § 1983. See Jennings, 482 F.3d at 701; Hayut, 352 F.3d at 743-45. To state a claim under this theory of liability, a plaintiff must allege that he or she was subjected to severe and pervasive harassment that was motivated by gender. Jennings, 482 F.3d" }, { "docid": "14885669", "title": "", "text": "explained above, the Court finds that Walsh has sufficiently alleged proximate cause to support her claims for the deprivation of familial relations under the Fourteenth Amendment and for negligence under California state law. Under either claim, Walsh may recover the medical expenses that were incurred as a result of Decedent’s suicide. Accordingly, the motions to dismiss are DENIED on this matter. 3. Punitive Damages The defendants contend that Walsh fails to allege facts that could support an award of punitive damages. (Doc. 7 at 32-33; Doc. 8 at 22-23.) The defendants reiterate that Walsh (1) alleges no facts with respect to Swanson; (2) simply disagrees with Ortega’s and Kaminski’s responses to the alleged harassment of Decedent; (3) at most indicates that Feehan acted negligently in his supervision of the students; and (4) merely alleges that Kirby, Haight, and Kabonic made stray remarks about Decedent. (Doc. 7 at 32-33; Doc. 8 at 22-23.) A plaintiff may recover punitive damages under § 1983 against an individual defendant whose conduct is “shown to be motivated by evil motive or intent, or when [the conduct] involves reckless or callous indifference to the ... rights of others.” Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983). Conduct that is shown to be “oppressive” will also suffice. Dang v. Cross, 422 F.3d 800, 807-08 (9th Cir.2005). Here, as explained above, the Court finds that Walsh states cognizable claims under § 1983 against Ortega and Kaminski for, among other things, responding with deliberate indifference to Decedent’s complaints of sexual harassment. Moreover, Walsh alleges that in violating Decedent’s constitutional rights, the defendants acted maliciously and with conscious disregard to the rights of Decedent. (Doc. 1-4 ¶¶ 71, 77.) At this juncture, the Court finds this sufficient to support Walsh’s prayer for punitive damages. Accordingly, the motions to dismiss are DENIED on this matter. D. OTHER MATTERS Finally, the Court notes that Kirby, Haight, Kabonic, and Feehan move to dismiss the claims asserted against them on other grounds. Specifically, Kirby, Haight, and Kabonic argue that their stray remarks are protected speech under the First" }, { "docid": "14885657", "title": "", "text": "(3) the school responded with deliberate indifference. Id. at 579, 84 Cal.Rptr.3d 285. Accordingly, for the same reasons discussed in the Court’s analysis of Walsh’s Title IX claim, Walsh’s teacher-on-student harassment claim pursuant to section 220 is DISMISSED with leave to amend. 5. Negligence and Wrongful Death Walsh asserts claims for negligence and wrongful death against all the defendants. “In order to establish negligence under California law, a plaintiff must establish four required elements: (1) duty; (2) breach; (3) causation; and (4) damages.” Ileto v. Glock, Inc., 349 F.3d 1191, 1203 (9th Cir.2003) (citing Martinez v. Pacific Bell, 225 Cal.App.3d 1557, 275 Cal.Rptr. 878 (1990)). a. Superintendent Swanson As explained above, Walsh fails to allege any facts relating to Swanson. Accordingly, Walsh’s negligence and wrongful death claims against Swanson are DISMISSED with leave to amend. See Cal. Gov.Code §§ 820.8, 820.9 (a public employee is not vicariously liable for injuries that are caused by the acts of another person); Iqbal, 129 S.Ct. at 1949 (“To survive a motion to dismiss, a complaint must contain sufficient factual matter ... to state a claim for relief that is plausible on its face.”) (internal quotation marks and citation omitted). b. Teachers Kirby, Haight, Kabonic, and Feehan Walsh alleges that Kirby, Haight, Kabonic, and Feehan breached their duty to take reasonable steps to protect Decedent as a student. (Doc. 1^4 ¶¶ 94-96.) Once again, the defendants counter that Walsh fails to allege facts that plausibly establish that they breached a duty of care owed to Decedent. (Doc. 8 at 18-20.) “While school districts and their employees have never been considered insurers of the physical safety of students, California law has long imposed on school authorities a duty to supervise at all times the conduct of the children on the school grounds and to enforce those rules and regulations necessary to their protection.” Dailey v. Los Angeles Unified Sch. Dist., 2 Cal.3d 741, 747, 87 Cal.Rptr. 376, 470 P.2d 360 (1970) (citations and internal quotation marks omitted). The level of care that school authorities are held to in discharging this duty is the degree of" }, { "docid": "14885658", "title": "", "text": "factual matter ... to state a claim for relief that is plausible on its face.”) (internal quotation marks and citation omitted). b. Teachers Kirby, Haight, Kabonic, and Feehan Walsh alleges that Kirby, Haight, Kabonic, and Feehan breached their duty to take reasonable steps to protect Decedent as a student. (Doc. 1^4 ¶¶ 94-96.) Once again, the defendants counter that Walsh fails to allege facts that plausibly establish that they breached a duty of care owed to Decedent. (Doc. 8 at 18-20.) “While school districts and their employees have never been considered insurers of the physical safety of students, California law has long imposed on school authorities a duty to supervise at all times the conduct of the children on the school grounds and to enforce those rules and regulations necessary to their protection.” Dailey v. Los Angeles Unified Sch. Dist., 2 Cal.3d 741, 747, 87 Cal.Rptr. 376, 470 P.2d 360 (1970) (citations and internal quotation marks omitted). The level of care that school authorities are held to in discharging this duty is the degree of care a person of ordinary prudence would exercise under the circumstances. Id. “Either a total lack of supervision or ineffective supervision may constitute a lack of ordinary care on the part of those responsible for student supervision” and may give rise to tort liability. Id. (internal citations omitted). Here, Walsh fails to allege facts showing a breach of this duty by Kirby, Haight, Kabonic, or Feehan. As explained by the Court in the context of Walsh’s equal protection claims, Walsh merely alleges that Kirby and Haight gossiped about Decedent; Kabonic called Decedent a name; and Feehan was present, in a general sense, when other students harassed Decedent. None of these allegations are sufficient to allege the breach of a faculty member’s duty to protect Decedent. Accordingly, Walsh’s negligence and wrongful death claims against Kirby, Haight, Kabonic, and Feehan are DISMISSED with leave to amend. c. The School District i. Vicarious Liability Walsh claims that the School District is vicariously liable for the negligent acts and omissions of its employees. Pursuant to California Government Code section" }, { "docid": "14885639", "title": "", "text": "a general matter, faced hostility from other students. This does not arise to a cognizable claim. Accordingly, to the extent that Walsh claims that Kirby, Haight, and Kabonic violated the Equal Protection Clause by failing to investigate or discipline harassment, the claims are DISMISSED with leave to amend. c. Equal Protection — Sexual Harassment Walsh also claims, apparently, that Kirby, Haight, and Kabonic violated the Equal Protection Clause by sexually harassing Decedent. (See Doc. 12 at 6) (“[I]n the present case [Walsh] alleges not only non-feasance in the form of deliberate indifferent [sic], but also affirmative discriminatory conduct and statements by the individual defendants.”). Some circuits have explicitly recognized that sexual harassment by a public official in an educational setting can violate the Equal Protection Clause and is cognizable under § 1983. See Jennings, 482 F.3d at 701; Hayut, 352 F.3d at 743-45. To state a claim under this theory of liability, a plaintiff must allege that he or she was subjected to severe and pervasive harassment that was motivated by gender. Jennings, 482 F.3d at 701, accord Bator v. Hawaii, 39 F.3d 1021, 1027 (9th Cir.1994) (allegations of persistent workplace harassment that is motivated by gender supports a discrimination claim under the Equal Protection Clause). i. Teachers Kirby and Haight Here, the Court agrees with Kirby and Haight that their comments regarding Decedent cannot amount to unlawful sexual harassment and discrimination. Walsh alleges that at one point, Kirby told a student that she and other teachers had taken bets on when Decedent would “come out.” (Doc. 1-3 ¶35.) With respect to Haight, Walsh alleges that Haight told a student that she wanted to ask Decedent and his boyfriend what was “wrong” with them.” (Id. ¶ 36.) While these comments may have been distasteful, they do not demonstrate severe or pervasive gender harassment. At most, the allegations demonstrate that Kirby and Haight gossiped about Decedent on an occasion. This does not give rise to a constitutional violation. See, e.g., Dyess v. Tehachapi Unified Sch. Dist., No. 1:10-CV-0166-AWI-JLT, 2010 WL 3154013, at *7-8, 2010 U.S. Dist. LEXIS 82653, at *24-25 (E.D.Cal." }, { "docid": "14885649", "title": "", "text": "claims against Kirby, Haight, Kabonic, and Feehan are DISMISSED with leave to amend. e. Qualified Immunity The Court notes that Kirby, Haight, Kabonic, and Feehan maintain that they are all entitled to qualified immunity. (Doc. 8 at 16-17.) Qualified immunity shields government officials from liability for civil damages, “insofar as their conduct does not violate clearly established [federal] statutory or constitutional rights of which a reasonable person would have known.” Tibbetts v. Kulongoski, 567 F.3d 529, 535 (9th Cir.2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). See Cousins v. Lockyer, 568 F.3d 1063, 1072 (9th Cir.2009) (qualified immunity is a doctrine of federal common law and is not applicable to California state law claims). Because the Court concludes that Walsh fails to state any cognizable federal statutory or constitutional claims against Kirby, Haight, Kabonic, and Feehan, but should be afforded leave to amend her allegations, the Court declines to address qualified immunity any further at this time. B. STATE LAW CLAIMS 1. Discretional Acts Immunity Swanson, Ortega, and Kaminski maintain that they are entitled to immunity from all state law claims pursuant to California Government Code section 820.2. Section 820.2 provides: “Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” Cal. Gov.Code 820.2. Whether a public employee is entitled to immunity for discretionary acts hinges on whether the acts or omissions in dispute constitute “basic policy decisions” or “ministerial” decisions. Caldwell v. Montoya, 10 Cal.4th 972, 981, 42 Cal.Rptr.2d 842, 897 P.2d 1320 (1995). “Immunity is reserved for those ‘basic policy decisions [which have] ... been [expressly] committed to coordinate branches of government^]’ ” Id. (quoting Johnson v. State of California, 69 Cal.2d 782, 793, 73 Cal.Rptr. 240, 447 P.2d 352 (1968)) (emphasis in the original). “On the other hand ... there is no basis for immunizing lower-level, or ‘ministerial,’ decisions that merely implement a basic" }, { "docid": "14885648", "title": "", "text": "mental condition or whether there was a superceding event that caused Decedent to commit suicide (i.e., the harassment on the actual day of the suicide, which occurred off school property) is a matter for another day. See Soto, 567 F.Supp. at 694. Accordingly, the motion to dismiss Walsh’s claim for the deprivation of a familial relationship is DENIED as to Ortega and Kaminski. iii. Teachers Kirby, Haight, Kabonic, and Feehan In addition to contesting proximate cause, Kirby, Haight, Kabonic, and Feehan argue that their alleged actions cannot give rise to a claim for the deprivation of familial relations in violation of the Fourteenth Amendment. (Doc. 8 at 15-16.) The Court agrees with the defendants in this regard. The conduct of Feehan and the alleged comments by Kirby, Haight, and Kabonic do not constitute conduct that “shocks the conscience.” Porter, 546 F.3d at 1137. As explained above, the defendants’ alleged conduct and comments do not even give rise to a cognizable claim for discrimination under the Equal Protection Clause. Accordingly, Walsh’s deprivation of a familial relationship claims against Kirby, Haight, Kabonic, and Feehan are DISMISSED with leave to amend. e. Qualified Immunity The Court notes that Kirby, Haight, Kabonic, and Feehan maintain that they are all entitled to qualified immunity. (Doc. 8 at 16-17.) Qualified immunity shields government officials from liability for civil damages, “insofar as their conduct does not violate clearly established [federal] statutory or constitutional rights of which a reasonable person would have known.” Tibbetts v. Kulongoski, 567 F.3d 529, 535 (9th Cir.2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). See Cousins v. Lockyer, 568 F.3d 1063, 1072 (9th Cir.2009) (qualified immunity is a doctrine of federal common law and is not applicable to California state law claims). Because the Court concludes that Walsh fails to state any cognizable federal statutory or constitutional claims against Kirby, Haight, Kabonic, and Feehan, but should be afforded leave to amend her allegations, the Court declines to address qualified immunity any further at this time. B. STATE LAW CLAIMS 1. Discretional Acts Immunity Swanson, Ortega," }, { "docid": "14885659", "title": "", "text": "care a person of ordinary prudence would exercise under the circumstances. Id. “Either a total lack of supervision or ineffective supervision may constitute a lack of ordinary care on the part of those responsible for student supervision” and may give rise to tort liability. Id. (internal citations omitted). Here, Walsh fails to allege facts showing a breach of this duty by Kirby, Haight, Kabonic, or Feehan. As explained by the Court in the context of Walsh’s equal protection claims, Walsh merely alleges that Kirby and Haight gossiped about Decedent; Kabonic called Decedent a name; and Feehan was present, in a general sense, when other students harassed Decedent. None of these allegations are sufficient to allege the breach of a faculty member’s duty to protect Decedent. Accordingly, Walsh’s negligence and wrongful death claims against Kirby, Haight, Kabonic, and Feehan are DISMISSED with leave to amend. c. The School District i. Vicarious Liability Walsh claims that the School District is vicariously liable for the negligent acts and omissions of its employees. Pursuant to California Government Code section 815.2, the School District may be held vicariously liable for injuries caused by the acts or omissions of its employees. Cal. Gov.Code § 815.2(a). Nevertheless, because the Court finds that Walsh fails to state cognizable negligence and wrongful death claims against Kirby, Haight, Kabonic, and Feehan, Walsh’s negligence and wrongful death claims against the School District are DISMISSED with leave to amend to the extent that liability is premised on the negligence of Kirby, Haight, Kabonic, or Feehan. ii. Liability for Mandatory Duties Walsh also claims that the School District is liable for failing to perform various mandatory duties. Pursuant to California Government Code section 815.6, the School District may be held liable for failing to exercise reasonable diligence in discharging a duty imposed by law which is designed to protect against the risk of a particular kind of injury. Cal. Gov.Code § 815.6; see generally Haggis v. City of Los Angeles, 22 Cal.4th 490, 498-99, 93 Cal.Rptr.2d 327, 993 P.2d 983 (2000). Nevertheless, as indicated above, the Court finds that Walsh fails to state" }, { "docid": "14885625", "title": "", "text": "States Constitution; (3) deprivation of familial relationship and companionship by all the defendants, except the School District, in violation of the First and Fourteenth Amendments of the United States Constitution; (4) discrimination by the School District in violation of the equal protection provision of the California Constitution and California’s Sex Equity in Education Act; (5) discrimination by all the defendants in violation of California’s Unruh Civil Rights Act; (6) negligence by all the defendants in violation of California Government Code sections 815.2, 815.6, and 820; (7) wrongful death; and (8) bystander emotional distress. (Doc. 1-4 at 2-17.) On September 8, 2011, the School District, Swanson, Ortega, and Kaminski filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 7.) A day later on September 9, 2011, Kabonic, Haight, Kirby, and Feehan also filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 8.) Walsh filed an opposition to both motions to dismiss on October 10, 2011. (Doc. 12.) II. LEGAL STANDARD A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) is a challenge to the legal sufficiency of a claim presented in the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001). Where there is a “lack of a cognizable legal theory” or an “absence of sufficient facts alleged under a cognizable legal theory,” dismissal under Rule 12(b)(6) is proper. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.1990). To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “Naked assertion[s],” “labels and conclusions,” or “formulaic recitation[s] of the elements of a cause of action will not do.” Id. at 555, 557, 127 S.Ct. 1955. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937," }, { "docid": "14885671", "title": "", "text": "Amendment. (Doc. 8 at 12-13.) Kirby, Haight, Kabonic, and Feehan also argue that Walsh fails to allege compliance with the presentation requirement of the California Torts Claims Act. (Id. at 21-22.) Because the Court has already concluded that Walsh fails to allege sufficient facts to state any cognizable claims against Kirby, Haight, Kabonic, or Feehan, the Court declines to address these alternative arguments at this time. IV. CONCLUSION In accordance with the above, this Court: 1. GRANTS IN PART and DENIES IN PART the motions to dismiss as follows: a. The Title IX teacher-on-student harassment claim against the School District is DISMISSED with leave to amend; b. All claims against Swanson are DISMISSED with leave to amend; c. The motion to dismiss Walsh’s equal protection claims under the Fourteenth Amendment for failure to investigate and discipline harassment is DENIED as to Ortega and Kaminski; d. The equal protection claims under the Fourteenth Amendment against Feehan, Kirby, Haight, and Kabonic for failure to investigate and discipline harassment are DISMISSED with leave to amend; e. The equal protection claims under the Fourteenth Amendment against Haight, Kirby, and Kabonic for sexual harassment and discrimination are DISMISSED with leave to amend; f. The motion to dismiss Walsh’s claims under the Fourteenth Amendment for the deprivation of familial relations is DENIED as to Ortega and Kaminski; g. The claims against Krby, Haight, Kabonic, and Feehan for the deprivation of familial relations under the Fourteenth Amendment are DISMISSED with leave to amend; h. The motion to dismiss Walsh’s Unruh Civil Rights Act claims is DENIED as to Ortega and Kaminski; i. The Unruh Civil Rights Act claims against Kirby, Haight, Kabonic, and Feehan are DISMISSED with leave to amend; j. To the extent Walsh asserts a claim under the equal protection provision of the California Constitution, the claim is DISMISSED with prejudice; k. The teacher-on-student harassment claim under California Education Code 220 is DISMISSED with leave to amend; l. The negligence and wrongful death claims against Kirby, Haight, Kabonie, and Feehan are DISMISSED with leave to amend; m. The negligence and wrongful death claims against the" }, { "docid": "14885660", "title": "", "text": "815.2, the School District may be held vicariously liable for injuries caused by the acts or omissions of its employees. Cal. Gov.Code § 815.2(a). Nevertheless, because the Court finds that Walsh fails to state cognizable negligence and wrongful death claims against Kirby, Haight, Kabonic, and Feehan, Walsh’s negligence and wrongful death claims against the School District are DISMISSED with leave to amend to the extent that liability is premised on the negligence of Kirby, Haight, Kabonic, or Feehan. ii. Liability for Mandatory Duties Walsh also claims that the School District is liable for failing to perform various mandatory duties. Pursuant to California Government Code section 815.6, the School District may be held liable for failing to exercise reasonable diligence in discharging a duty imposed by law which is designed to protect against the risk of a particular kind of injury. Cal. Gov.Code § 815.6; see generally Haggis v. City of Los Angeles, 22 Cal.4th 490, 498-99, 93 Cal.Rptr.2d 327, 993 P.2d 983 (2000). Nevertheless, as indicated above, the Court finds that Walsh fails to state cognizable claims for teacher-on-student harassment under Title IX and for discrimination under the equal protection provision of the California Constitution. Accordingly, to the extent that Walsh premises his claims for negligence and wrongful death against the School District on these grounds, the claims are DISMISSED. 6. Bystander Emotional Distress The defendants maintain that Walsh cannot recover for bystander emotional distress. (Doc. 7 at 27-29; Doc. 8 at 22.) The defendants argue that Walsh could only recover for bystander emotional distress if she actually observed Decedent the moment he hung himself and committed suicide. (Doc. 7 at 28.) According to the defendants, however, Walsh did not witness the traumatic event itself, but only observed its consequences. (Id.) A plaintiff may recover for emotional distress caused by observing the negligent infliction of harm on a third person only if the plaintiff “(1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and" }, { "docid": "14885624", "title": "", "text": "a friend encountered a student from Jacob-sen Middle School and three students from a high school in the School District. (Id. ¶ 50.) The students taunted, threatened, and physically assaulted Decedent. (Id.) That afternoon, Decedent hanged himself from a tree in his own backyard. (Id. ¶ 51.) Decedent left a suicide note thanking his family for their support. (Id. ¶ 52.) Decedent was later discovered by Walsh and Decedent’s younger brother and was taken to the hospital. (Id. ¶ 51.) After being comatose for more than a week, Decedent finally passed away on September 28, 2010. (Id.) Based on the above allegations, Walsh seeks to recover monetary damages individually and as the successor-in-interest to Decedent. Walsh asserts eight claims to this end: (1) failure by the School District to prevent sex, gender, and sexual orientation based harassment in violation of Title IX of the Education Amendments Act of 1972 (“Title IX”); (2) discrimination by all the defendants, except the School District, in violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution; (3) deprivation of familial relationship and companionship by all the defendants, except the School District, in violation of the First and Fourteenth Amendments of the United States Constitution; (4) discrimination by the School District in violation of the equal protection provision of the California Constitution and California’s Sex Equity in Education Act; (5) discrimination by all the defendants in violation of California’s Unruh Civil Rights Act; (6) negligence by all the defendants in violation of California Government Code sections 815.2, 815.6, and 820; (7) wrongful death; and (8) bystander emotional distress. (Doc. 1-4 at 2-17.) On September 8, 2011, the School District, Swanson, Ortega, and Kaminski filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 7.) A day later on September 9, 2011, Kabonic, Haight, Kirby, and Feehan also filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 8.) Walsh filed an opposition to both motions to dismiss on October 10, 2011. (Doc. 12.) II. LEGAL STANDARD A motion to dismiss pursuant to" } ]

[ { "docid": "22406836", "title": "", "text": "if a claimant suffers only from exertional impairments, e.g., strength limitations, then the Commissioner may satisfy her burden by resorting to the applicable grids. For a claimant whose characteristics match the criteria of a particular grid rule, the rule directs a conclusion as to whether he is disabled. In this case, if Pratts suffered only from exer-tional impairments, there is no dispute that the grids would require a determination that he was not disabled based upon his age, education, and prior work experience. If, however, Pratts “suffer[ed] from additional ‘nonexertional’ impairments, the grid rules may not be controlling” and “the guidelines c[ould] not provide the exclusive framework for making a disability determination.” Bapp v. Bowen, 802 F.2d 601, 604-05 (2d Cir.1986). Under Bapp, the applicability of the grids should be considered on a ease-by-case basis: If the guidelines adequately reflect a claimant’s condition, then their use to determine disability status is appropriate. But if a claimant’s nonexertional impairments “significantly limit the range of work permitted by his exertional limitations” then the grids obviously will not accurately determine disability status because they fail to take into account claimant’s nonexertional impairments. Accordingly, where the claimant’s work capacity is significantly diminished beyond that caused by his exertional impairment the application of the grids is inappropriate. Id. at 605-06 (citation omitted). A claimant’s work capacity is “significantly diminished” if there is an “additional loss of work capacity ... that so narrows a claimant’s possible range of work as to deprive him of a meaningful employment opportunity.” Id. at 606. In the present case, the ALJ did not specifically articulate the nonexertional impairments that Pratts suffered. Nonetheless, in light of her reference to “his nonexertional limitations,” she apparently believed that he had some. The ALJ found that the grids directed a conclusion that Pratts was not disabled even though she neither identified his nonexertional limitations nor considered whether a vocational expert was necessary. The ALJ simply proceeded directly to the ultimate question of disability without first considering whether further testimony was necessary in light of Pratts’s nonexertional impairments. The ALJ’s conclusion here is similar to" } ]

[ { "docid": "22731965", "title": "", "text": "112 (2d Cir.1981) (“When the claimant has established that his impairment prevents him from returning to his previous employment, ‘the burden shifts to the [Commissioner], who must produce evidence to show the existence of alternative substantial gainful work which exists in the national economy and which the claimant could perform, considering not only his physical capability, but as well his age, his education, his experience and his training.’ ”) (quoting Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980)). “In the ordinary case,” the Commissioner meets his burden at the fifth step “by resorting to the applicable medical vocational guidelines (the grids), 20 C.F.R. Pt. 404, Subpt. P, App. 2 (1986).” Bapp, 802 F.2d at 604. The grids “take[ ] into account the claimant’s residual functional capacity in conjunction with the claimant’s age, education and work experience.” Zorilla v. Chater, 915 F.Supp. 662, 667 (S.D.N.Y.1996). Based on these considerations, the grids indicate whether the claimant can engage in any substantial gainful work existing in the national economy. Although the grid results are generally dispositive, exclusive reliance on the grids is inappropriate where the guidelines fail to describe the full extent of a claimant’s physical limitations. In particular, “sole reliance on the [g]rid[s] may be precluded where the claimant’s exertional impairments are compounded by significant nonexertional impairments that limit the range of sedentary work that the claimant can perform.” Id. In these circumstances, the Commissioner must “introduce the, testimony of a vocational expert (or other similar evidence) that jobs exist in the economy which claimant can obtain and perform.” Bapp, 802 F.2d at 603. In this case, the ALJ undertook the prescribed five step analysis and found that Rosa had satisfied the first four steps. The ALJ determined, more specifically, that (1) Rosa had “not engaged in substantial gainful activity since her alleged onset of disability,” (2) she had “severe musculoskeletal impairments,” (3) these impairments did not meet “the level of severity of any impairment contained in Appendix I,” and (4) the impairments nevertheless “prevent[ed] her from performing her past relevant work.” Thus, as the ALJ recognized, it was the Commissioner’s" }, { "docid": "22047417", "title": "", "text": "his residual functional capacity to perform sedentary work); Blacknall v. Heckler, 721 F.2d 1179, 1181 (9th Cir.1983) (per curiam) (reliance on grids approved where substantial evidence supported AU’s finding that plaintiff’s nonexertional impairments “did not significantly limit the range of work permitted by his exertional limitations”); Hernandez v. Heckler, 704 F.2d 857, 863 (5th Cir.1983) (when evidence supports AU’s finding that plaintiff’s nonexertional impairments do not “further diminish” his ability to perform sedentary work, the guidelines were properly applied). Ill In light of the above discussion, we hold that application of the grid guidelines and the necessity for expert testimony must be determined on a case-by-case basis. If the guidelines adequately reflect a claimant’s condition, then their use to determine disability status is appropriate. But if a claimant’s nonexertional impairments “significantly limit the range of work permitted by his exertional limitations” then the grids obviously will not accurately determine disability status because they fail to take into account claimant's nonexertional impairments. Blacknall, 721 F.2d at 1181. Accordingly, where the claimant’s work capacity is significantly diminished beyond that caused by his exertional impairment the application of the grids is inappropriate. By the use of the phrase “significantly diminish” we mean the additional loss of work capacity beyond a negligible one or, in other words, one that so narrows a claimant’s possible range of work as to deprive him of a meaningful employment opportunity. Although we note the AU found that Bapp’s nonexertional impairments did not “significantly diminish” the full range of light work that he could perform, we believe that he did so in the context of the ultimate question, i.e. was Bapp disabled. The AU failed to consider the intermediate question — whether the range of work Bapp could perform was so significantly diminished as to require the introduction of vocational testimony. Upon remand the AU must reevaluate whether the Secretary has shown that plaintiff’s capability to perform the full range of light work was not significantly diminished by his coughing and blackout spells. That initial determination can be made without resort to a vocational expert. If nonexertional limitations significantly" }, { "docid": "22406792", "title": "", "text": "other case involving a non-exertional impairment; rather, we only require that there be reliable evidence of some kind that would persuade a reasonable person that the limitations in question do not significantly diminish the employment opportunities otherwise available.” (citation omitted)); Channel v. Heckler, 747 F.2d 577, 582 n. 6 (10th Cir.1984) (per curiam) (holding that “the mere presence of a non-exertional impairment does not automatically preclude reliance on the grids”; rather, reliance on the grids is foreclosed only when the nonexertional impairment poses an additional limitation on the claimant’s ability to perform a range of available jobs.). This described limitation on the rule against exclusive reliance on the grids when the claimant has exertional and non-exertional impairments significantly narrows the rule. It leaves the ALJ free to assess whether there is credible evidence that the nonexertional impairment limits residual functional capacity before going off the grids, in effect allowing the ALJ to refer to the grids (and consider the medical evidence) to determine whether the nonexertional impairment is severe enough to make the grids inapplicable before considering any evidence in addition to the grids. See, e.g., Bapp, 802 F.2d at 606 (“Upon remand the ALJ must reevaluate whether the Secretary has shown that plaintiffs capability to perform the full range of light work was not significantly diminished [by his nonexertional impair ments]. That initial determination can be made without resort to a vocational expert.”). The government’s interpretation of 20 C.F.R. Part 404, Subpart P, Appendix 2, § 200.00(e)(2) (1999) in effect adopts this limitation on the rule barring exclusive rebanee on the grids when the claimant has exertional and nonexertional impairments. In Washington v. Heckler, 756 F.2d 959 (3d Cir.1985), we left open the possibility that the Commissioner could use the grids as a “framework” for determining the extent to which a nonexertional limitation may further diminish work capacity. See id. at 967-68. But the framework approach does not comport with Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983), when it is defined as broadly as it is here. The regulation provides that, where an" }, { "docid": "22153415", "title": "", "text": "in the appendix of the relevant disability regulation, (4) the impairment prevents the claimant from performing his or her past work, and (5) the claimant possesses a residual functional capability (RFC) to perform other work in the national economy, considering his or her age, education, and work experience. 20 C.F.R. § 404.1520(a)(4) (2003); see also, Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir.1992); Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.1988). In order to help evaluate the step five requirement, whether or not there are sufficient jobs in the economy that the claimant can perform given his or her age, education, and work experience, the Social Security Administration has created Medical-Vocational Guidelines, also known as “the grids.” See 20 C.F.R. § 404.1567; id. pt. 404, subpt. P, app. 2; Trimiar, 966 F.2d at 1332. Five degrees of residual functional capacity are outlined in the grids by general exertional level—sedentary, light, medium, heavy, and very heavy exertion. 20 C.F.R. § 404.1569a; Trimiar, 966 F.2d at 1332 n. 22. Residual functional capacity reflects “the maximum degree to which the individual retains the capacity for sustained performance of the physical-mental requirements of jobs.” 20 C.F.R. pt. 404, subpt. P, app. 2, § 200.00(c). If the ALJ finds that a claimant’s exertional capacity, education, age, and skills fit precisely within the criteria of a particular grid level, the ALJ may conclude the claimant is not disabled. Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir.1999). Based on medical records indicating a history of chronic back problems, the ALJ determined that Allen’s severe spinal impairment precluded his return to past relevant work. Finding that his impairment did not foreclose all significant opportunities for gainful employment, however, the ALJ denied disability benefits at step five of the controlling analytical sequence, erroneously concluding that Allen was not disabled because he retained the capacity to perform light work. The difficulty with the ALJ’s decision stems from his failure to link his findings regarding Allen’s RFC to his conclusion regarding Allen’s vocational opportunities, resulting in a flawed assessment of Allen’s disability status. While the ALJ found Allen" }, { "docid": "22406835", "title": "", "text": "with vitamins and proteins,” a statement that is directly contradicted by Pratts’s AZT prescription and perhaps indicates a failure to comprehend fully the nature of HIV and AIDS. These errors further winnowed the amount of substantial evidence underlying the ALJ’s decision to deny Pratts disability benefits. See, e.g., Decker v. Harris, 647 F.2d 291, 295 (2d Cir.1981) (finding ALJ’s conclusion erroneous when contradicted by direct evidence in the record). For the reasons given above, the ALJ did not, and indeed could not, decide Pratts’s claim with the benefit of a complete and accurate record. She also committed several factual errors in evaluating the medical evidence of Pratts’s allegedly disabling condition. We therefore hold that her decision to deny Pratts disability benefits is not supported by substantial evidence. We also find that the ALJ erred in her application of the Medical-Vocational Guidelines (the “grids”), 20 C.F.R. Pt. 404, Subpt. P, App. 2 (1995), to Pratts’s case. Under the Social Security Act, the Commissioner bears the burden of proof for the final determination of disability. Generally speaking, if a claimant suffers only from exertional impairments, e.g., strength limitations, then the Commissioner may satisfy her burden by resorting to the applicable grids. For a claimant whose characteristics match the criteria of a particular grid rule, the rule directs a conclusion as to whether he is disabled. In this case, if Pratts suffered only from exer-tional impairments, there is no dispute that the grids would require a determination that he was not disabled based upon his age, education, and prior work experience. If, however, Pratts “suffer[ed] from additional ‘nonexertional’ impairments, the grid rules may not be controlling” and “the guidelines c[ould] not provide the exclusive framework for making a disability determination.” Bapp v. Bowen, 802 F.2d 601, 604-05 (2d Cir.1986). Under Bapp, the applicability of the grids should be considered on a ease-by-case basis: If the guidelines adequately reflect a claimant’s condition, then their use to determine disability status is appropriate. But if a claimant’s nonexertional impairments “significantly limit the range of work permitted by his exertional limitations” then the grids obviously will not" }, { "docid": "22649327", "title": "", "text": "able to perform other work that exists in significant numbers in the national economy. 20 C.F.R. § 404.1561. In general, if a claimant suffers only from exertional limitations, e.g., strength limitations, the ALJ at step five may apply the Commissioner’s Medical-Vocational Guidelines [the “grids”] to match the claimant with appropriate work 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(b). The grids are based on strength factors only. 7& The ALJ may apply the grids in lieu of taking testimony of a vocational expert only when the grids accurately and completely describe the claimant’s abilities and limitations. Jones v. Heckler, 760 F.2d 993, 998 (9th Cir.1985) (citation omitted). If the grids fail accurately to describe a claimant’s limitations, the ALJ may not rely on the grids alone to show the availability of jobs for the claimant. Id. (citations omitted). See also Bapp v. Bowen, 802 F.2d 601, 605-06 (2d Cir.1986) (stating that application of the grids is inappropriate where a claimant’s work capacity is significantly diminished beyond that caused by an exertional impairment). In these cases, the ALJ must also hear the testimony of a vocational expert. Desrosiers v. Secretary of Health & Human Servs. 846 F.2d 573, 578 (9th Cir.1988) (Pregerson, J., concurring) (citing Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir.1985)). We do not remand this case for further proceedings because it is clear from the administrative record that Claimant is entitled to benefits. Because limitations caused by CFS include non-exertional limitations, the Commissioner cannot, at step five, rely exclusively on the grids. Testimony of a vocational expert is required. At Claimant’s hearing before the ALJ, a vocational expert did testify about the nature of Claimant’s limitations. The expert testified that if Claimant’s testimony were credited concerning her fatigue, she would be unable to perform her past work, due to her need to take frequent naps and an inability to carry out repetitive tasks. See Kornock v. Harris, 648 F.2d 525, 527 (9th Cir.1980) (citations omitted) (“The ability to work only a few hours at day or to work only on an intermittent basis is not" }, { "docid": "22946484", "title": "", "text": "ALJ first ascertains a claimant’s “residual functional capacity,” which involves findings as to the claimant’s ability to lift weight, sit, stand, push, and pull. 20 C.F.R. § 404.1567 (1981). For claimants found capable of sedentary, light, or medium work, the regulations provide three tables, one corresponding to each level of residual functional capacity. These tables account for the vocational factors of age, education, and work experience, which are mentioned in the statute. 42 U.S.C. § 423(d)(2)(A). The ALJ determines a claimant’s age, education, and work experience and reads from the appropriate table and line the conclusion of whether the claimant is disabled. When the grid regulations apply, they leave no discretion to the ALJ, for they direct the ultimate conclusion of whether a claimant is capable of other substantial gainful work in the national economy. Where the grids do not apply, however, the ALJ determines for himself, under the general guidelines accompanying the grids, whether the claimant is capable of other substantial work. 20 C.F.R. part 404, sub-part P, App. 2 § 200.00(a), (d). The grid regulations do not apply unless each factor in the matrix is met by a characteristic of the claimant. Id. There are two notable exclusions from the grids. At a given residual functional capacity, if a claimant is capable of some work at that level but not a full range of work, then that level of the grids is not applicable. Id. at §§ 201.00(h), (i), 202.00(b); see 43 Fed.Reg. 9284, 9300. Accord Santise v. Schweiker, 676 F.2d 925, 934 (3d Cir. 1982); Kirk v. Secretary, 667 F.2d 524, 529 (6th Cir. 1981). Second, in determining residual functional capacity only exertional limitations are considered, i.e., ability to lift, stand, push, pull, handle, etc. If a claimant has nonexertional impairments that significantly limit the ability to do basic work activities — for example, sensory impairments such as skin or respiratory sensitivity and mental or emotional impairments— then the grid regulations do not apply. Id. at § 200.00(e). II. Validity of the regulations A. Introduction The effect of the Medical-Vocational Guidelines can be described in different ways." }, { "docid": "22406816", "title": "", "text": "of the grids is precluded); Fenton v. Apfel, 149 F.3d 907, 910 (8th Cir.1998) (the Commissioner must produce vocational expert testimony concerning the availability of jobs that a person with a claimant's particular characteristics can perform, if his or her characteristics do not match those in the regulations); Cooper v. Sullivan, 880 F.2d 1152, 1155-56 (9th Cir.1989) (if the exertional impairments alone are insufficient to direct a finding of disability, analysis in addition to the grids is required); Channel v. Heckler, 747 F.2d 577, 582 (10th Cir.1984) (per curiam) (without a “specific finding, supported by substantial evidence, that despite his non-exerlional impairments, [the claimant] could perform a full range of sedentary work on a sustained basis, it was improper for the ALJ conclusively to apply the grids in determining that [the claimant] was not disabled”); Swindle v. Sullivan, 914 F.2d 222, 226 (11th Cir.1990) (per curiam) (\"If [the claimant's] non-exertional impairments significantly limit basic work activities, the ALJ should not rely solely on the Grids and should take evidence from a vocational expert to determine whether there exists in the national economy a significant number of jobs for someone with [the claimant’s] limitations”); Smith v. Bowen, 826 F.2d 1120, 1122 (D.C.Cir.1987) (recognizing that \"applying the grids to a claimant with nonex-ertional impairments may lead to an inaccurate finding that jobs exist that the claimant can perform”). . A finding under step two of the regulations that a claimant has a \"severe” nonexertional limitation is not the same as a finding that the nonexertional limitation affects residual functional capacity. The cases cited above do not rely on the \"severity” determination, but rather impose an additional requirement that the nonexertional impairment limit the capacity for work beyond the claimant’s residual func-lional capacity, given the limitations imposed by the exertional impairment. See, e.g., Bapp, 802 F.2d at 606 (\"By the use of the phrase 'significantly diminish' we mean the additional loss of work capacity beyond a negligible one or, in other words, one that so narrows a claimant’s possible range of work as to deprive him of a meaningful employment opportunity.”). . Bowen" }, { "docid": "4938342", "title": "", "text": "is dispositive on the issue of disability. Crean, 1992 WL 183421, at *4. Exclusive reliance on the Grid, however, is inappropriate where the medical-vocational guidelines fail to accurately describe a claimant’s particular limitations. See 20 C.F.R. Part 404, Subpart P, App. 2, § 200.00(e); Crean, 1992 WL 183421, at *4. Where there are discrepancies between the claimant’s profile and the Grid factors, all relevant facts are to be considered in light of the vocational considerations outlined in 20 C.F.R. §§ 404.1560-404.1569a; see Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir.1986). For example, sole reliance on the Grid may be pre-eluded where the claimant’s exertional impairments are compounded by significant nonexertional impairments that limit the range of sedentary work that the claimant can perform. See 20 C.F.R. Part 404, Subpart P, App. 2, §§ 200.00(e)(2), 201.00(h); see also Bapp, 802 F.2d at 605; Crean, 1992 WL 183421, at *4-*5. This is also the case where there is not substantial evidence that a claimant can perform a full exertional range of work. See Nelson v. Bowen, 882 F.2d 45, 49 (2d Cir.1989) (individual assessment required where there is insufficient proof that a claimant can perform a full range sedentary work). B. In the present case, the ALJ undertook the five step inquiry. First, the ALJ found that Zorilla had not engaged in substantial gainful activity since April 21, 1993. (R. at 13.) Second, the ALJ found that Zorilla was severely impaired, citing both her status post thyroidectomy with associated “hypothyroidism and hyproparathyroidism” and “adjustment reaction with depression and personality disorder.” (Id.) Third, the ALJ found that Zorilla’s impairments were not listed in the regulations. (Id.); see 20 C.F.R. Part 404, Subpart P, App. 1., ¶¶ 12.00-09. With respect to whether Zorilla retained a residual functional capacity to perform her past work, the ALJ made no findings because Zorilla had never been employed. See Vega v. Sullivan, No. 88 Civ. 4182, 1989 WL 99774, at *3 (S.D.N.Y. Aug. 24, 1989) (“The [fourth] step — whether a claimant can perform past relevant work— was inapplicable, since Vega had no prior work experience.”); Marzec" }, { "docid": "22406791", "title": "", "text": "nonexertional impairment does not “significantly” affect his or her ability to perform the full range of jobs at the appropriate exertional level); Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir.1986) (holding that if the guidelines adequately reflect a claimant’s condition, using them to determine disability status is appropriate, “[b]ut if a claimant’s nonex-ertional impairments significantly limit the range of work permitted by his exertional limitations then the grids obviously will not accurately determine disability status because they fail to take into account claimant’s nonexertional impairments” (internal quotation marks omitted)); Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir.1987) (when the claimant’s nonexertional impairments do not significantly affect his residual functional capacity, the ALJ may rely exclusively on the guidelines in determining whether there is other work available that the claimant can perform); Warmoth v. Bowen, 798 F.2d 1109, 1112 (7th Cir.1986) (per curiam) (“While a vocational expert’s specialized knowledge undoubtedly would be helpful in the present case, this is not to say that testimony from such an expert is required in this and every other case involving a non-exertional impairment; rather, we only require that there be reliable evidence of some kind that would persuade a reasonable person that the limitations in question do not significantly diminish the employment opportunities otherwise available.” (citation omitted)); Channel v. Heckler, 747 F.2d 577, 582 n. 6 (10th Cir.1984) (per curiam) (holding that “the mere presence of a non-exertional impairment does not automatically preclude reliance on the grids”; rather, reliance on the grids is foreclosed only when the nonexertional impairment poses an additional limitation on the claimant’s ability to perform a range of available jobs.). This described limitation on the rule against exclusive reliance on the grids when the claimant has exertional and non-exertional impairments significantly narrows the rule. It leaves the ALJ free to assess whether there is credible evidence that the nonexertional impairment limits residual functional capacity before going off the grids, in effect allowing the ALJ to refer to the grids (and consider the medical evidence) to determine whether the nonexertional impairment is severe enough to make the grids inapplicable" }, { "docid": "22406793", "title": "", "text": "before considering any evidence in addition to the grids. See, e.g., Bapp, 802 F.2d at 606 (“Upon remand the ALJ must reevaluate whether the Secretary has shown that plaintiffs capability to perform the full range of light work was not significantly diminished [by his nonexertional impair ments]. That initial determination can be made without resort to a vocational expert.”). The government’s interpretation of 20 C.F.R. Part 404, Subpart P, Appendix 2, § 200.00(e)(2) (1999) in effect adopts this limitation on the rule barring exclusive rebanee on the grids when the claimant has exertional and nonexertional impairments. In Washington v. Heckler, 756 F.2d 959 (3d Cir.1985), we left open the possibility that the Commissioner could use the grids as a “framework” for determining the extent to which a nonexertional limitation may further diminish work capacity. See id. at 967-68. But the framework approach does not comport with Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983), when it is defined as broadly as it is here. The regulation provides that, where an individual has an impairment or a combination of impairments resulting in both exertional and nonexertional limitations, if a finding of disability is not possible based on exertional limitations alone, the grids “provide a framework for consideration of how much the individual’s work capability is further diminished in terms of any types of jobs that would be contraindicated by the nonexertional limitations.” 20 C.F.R. pt. 404, subpt. P, app. 2, § 200.00(e)(2) (1999). By comparison, the regulations governing a determination of disability when the claimant has solely exertional impairments direct a finding of disability without reference to additional evidence when the factors of the claimant’s particular impairments coincide with the criteria of a rule: The existence of jobs in the national economy is reflected in the “Decisions” shown in the rules; i.e., in promulgating the rules, administrative notice has been taken of the numbers of unskilled jobs that exist throughout the national economy at the various functional levels (sedentary, light, medium, heavy, and very heavy) as supported by the “Dictionary of Occupational Titles” and the “Occupational" }, { "docid": "4249972", "title": "", "text": "can perform. The grids, however, generally take account only of exertional impairments. Exertional impairments are those that affect the claimant’s “ability to meet the strength demands of jobs (sitting, standing, walking, lifting, carrying, pushing, and pulling).” 20 C.F.R. § 404.1569a(b). Non-exertional impairments — such as depression, anxiety, difficulty concentrating or remembering — are defined as all other impairments that do not affect a claimant’s ability to meet the strength demands of jobs. 20 C.F.R. § 404.1569a(c)(1). Where a nonexertional - limitation might substantially reduce the range of work an individual can perform, use of the grids is inappropriate and the ALJ must consult a VE. Zurawski v. Halter, 245 F.3d 881, 889 (7th Cir.2001) (citing Luna v. Shalala, 22 F.3d 687, 691 (7th Cir.1994)). Fast acknowledges that the grids do not apply directly, but she urges that they should nonetheless have been used as a framework for decision. She contends that 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(e) and its corresponding policy statement, SSR 85-15, support her theory because both discuss the use of the grids as a “framework.” 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(e)(2) reads as follows: [WJhere an individual has an impairment or combination of impairments resulting in both strength limitations and nonexertional limitations, the rules in this subpart are considered in determining first whether a finding of disabled may be possible based on the strength limitations alone, and if not, the rule(s) reflecting the individuals maximum residual strength capabilities, age, education, and work experience provide a framework for consideration of how much the individual’s work capability is further diminished in terms of any types of jobs that would be contraindicated by the nonexertional limitations. 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(e)(2) (emphasis added). Similarly, SSR 85-15 states that where a claimant suffers both exertional and nonexertional impairments, the grids may provide a framework for consideration: The table rules reflect the potential occupational base of unskilled jobs for individuals who have severe impairments which limit their exertional capacities .... Where individuals also have non-exertional limitations of function or" }, { "docid": "22649326", "title": "", "text": "be resolved before a proper disability determination can be made, and where it is clear from the administrative record that the ALJ would be required to award benefits if the claimant’s excess pain testimony were credited, we will not remand solely to allow the ALJ to make specific findings regarding that testimony. Rather, we will ... take that testimony to be established as true. Varney II, 859 F.2d at 1401. See also Swenson, 876 F.2d at 689 (directing an award of benefits where no useful purpose would be served by further proceedings); Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir.1989) (same); Winans v. Bowen, 853 F.2d 643, 647 (9th Cir.1987) (accepting uncontradicted testimony as true and awarding benefits where the ALJ failed to provide clear and convincing reasons for discounting the opinion of claimant’s treating physician). Here, the ALJ determined, at step four, that Claimant had the residual functional capacity to perform her past work as a payroll clerk. Had he reached step five, he would have been required to determine whether she was able to perform other work that exists in significant numbers in the national economy. 20 C.F.R. § 404.1561. In general, if a claimant suffers only from exertional limitations, e.g., strength limitations, the ALJ at step five may apply the Commissioner’s Medical-Vocational Guidelines [the “grids”] to match the claimant with appropriate work 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(b). The grids are based on strength factors only. 7& The ALJ may apply the grids in lieu of taking testimony of a vocational expert only when the grids accurately and completely describe the claimant’s abilities and limitations. Jones v. Heckler, 760 F.2d 993, 998 (9th Cir.1985) (citation omitted). If the grids fail accurately to describe a claimant’s limitations, the ALJ may not rely on the grids alone to show the availability of jobs for the claimant. Id. (citations omitted). See also Bapp v. Bowen, 802 F.2d 601, 605-06 (2d Cir.1986) (stating that application of the grids is inappropriate where a claimant’s work capacity is significantly diminished beyond that caused by an exertional impairment). In" }, { "docid": "15816585", "title": "", "text": "Administration (“SSA”) employs a five-step sequential evaluation process. See 20 C.F.R. § 404.1520. Because the parties do not dispute that Calabrese met her burden at steps one through four of the analysis, the only question on appeal is whether the Commissioner adequately demonstrated Calabrese’s retention of the necessary residual functional capacity (“RFC”) to perform other substantial gainful work existing in the national economy. See Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir.2009) (noting that Commissioner bears burden of proof at step five of analysis). Like the district court, we answer that question in the affirmative. 1. Application of the Medical Vocational Guidelines Calabrese submits that, because she suffers nonexertional impairments, the ALJ erred in relying on the medical vocational guidelines (the “grids”) to adjudicate her claim. Cf. Rosa v. Callahan, 168 F.3d 72, 78 (2d Cir.1999) (observing that where individual seeking disability benefits suffers from only exertional impairments, “Commissioner meets his burden at the fifth step by resorting to ... the grids”). We are not persuaded. As we explained in Bapp v. Bowen, 802 F.2d 601 (2d Cir.1986), “the mere existence of a nonexertional impairment does not automatically require the production of a vocational expert [ ]or preclude reliance on the [grids],” id. at 603. Rather, “the testimony of a vocational expert ... that jobs exist in the economy which claimant can obtain and perform” is required only where the “claimant’s nonexertional impairments significantly dimmish [her] ability to work— over and above any incapacity caused solely from exertional limitations — so that [s]he is unable to perform the full range of employment indicated by the [grids].” Id. We assess the need for a vocational expert “on a case-by-case basis,” id. at 605, and, in doing so, interpret the phrase “significantly diminish” to refer to an “additional loss of work capacity ... that so narrows a claimant’s possible range of work as to deprive [her] of a meaningful employment opportunity,” id. at 606. In assessing the extent to which Calabrese’s nonexertional limitations “erode[d] the unskilled sedentary occupational base” into which she would otherwise have been placed, the ALJ sought the" }, { "docid": "4938341", "title": "", "text": "an ALJ is not sufficient evidence of the claimant's work capacity; an explanation of the claimant’s functional capacity from a doctor is required. Rivera-Torres v. Secretary of Health & Human Servs., 837 F.2d 4, 6-7 (1st Cir.1988). As explicitly stated in the regulations, residual functional capacity (“RFC”) is a medical assessment, and therefore, the ALJ is precluded from making his assessment without some expert medical testimony or other medical evidence to support his decision. See 20 C.F.R. § 404.1513(c), (d)(3). In meeting her burden of proof on the fifth step of the sequential evaluation process described above, the Commissioner, under appropriate circumstances, may rely on the medical-vocational guidelines contained in 20 C.F.R. Part 404, Subpart P, App. 2, commonly referred to as “the Grid”. The Grid takes into account the claimant’s residual functional capacity in conjunction with the claimant’s age, education and work experience. Based on these factors, the Grid indicates whether the claimant can engage in any other substantial gainful work which exists in the national economy. Generally the result listed in the Grid is dispositive on the issue of disability. Crean, 1992 WL 183421, at *4. Exclusive reliance on the Grid, however, is inappropriate where the medical-vocational guidelines fail to accurately describe a claimant’s particular limitations. See 20 C.F.R. Part 404, Subpart P, App. 2, § 200.00(e); Crean, 1992 WL 183421, at *4. Where there are discrepancies between the claimant’s profile and the Grid factors, all relevant facts are to be considered in light of the vocational considerations outlined in 20 C.F.R. §§ 404.1560-404.1569a; see Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir.1986). For example, sole reliance on the Grid may be pre-eluded where the claimant’s exertional impairments are compounded by significant nonexertional impairments that limit the range of sedentary work that the claimant can perform. See 20 C.F.R. Part 404, Subpart P, App. 2, §§ 200.00(e)(2), 201.00(h); see also Bapp, 802 F.2d at 605; Crean, 1992 WL 183421, at *4-*5. This is also the case where there is not substantial evidence that a claimant can perform a full exertional range of work. See Nelson v. Bowen," }, { "docid": "22406790", "title": "", "text": "prescriptions of the grids, a finding that appellant was not disabled is simply contrary to this Court’s precedent.”); Wallace v. Secretary of Health & Human Servs., 722 F.2d 1150, 1155 (3d Cir.1983) (per curiam) (“Such an inappropriate reliance on the grid regulations to determine the disability of an individual with both exertional and non-exertional impairments would be contrary to Burnam”). There is, however, considerable variety among the courts of appeals regarding the scope of the limitation on the use of the grids when a claimant has exertional and nonexertional impairments. Some cases from the other circuits have held that the bar on exclusive reliance on the grids in this situation is limited by the requirement that the nonexertional impairment invoked must be significant enough to limit further the range of work permitted by the exertional limitations (the residual functional capacity) before it precludes application of the grids. See, e.g., Heggarty v. Sullivan, 947 F.2d 990, 996 (1st Cir.1991) (per curiam) (noting law of circuit that the Commissioner may rely on the grids if the claimant’s nonexertional impairment does not “significantly” affect his or her ability to perform the full range of jobs at the appropriate exertional level); Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir.1986) (holding that if the guidelines adequately reflect a claimant’s condition, using them to determine disability status is appropriate, “[b]ut if a claimant’s nonex-ertional impairments significantly limit the range of work permitted by his exertional limitations then the grids obviously will not accurately determine disability status because they fail to take into account claimant’s nonexertional impairments” (internal quotation marks omitted)); Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir.1987) (when the claimant’s nonexertional impairments do not significantly affect his residual functional capacity, the ALJ may rely exclusively on the guidelines in determining whether there is other work available that the claimant can perform); Warmoth v. Bowen, 798 F.2d 1109, 1112 (7th Cir.1986) (per curiam) (“While a vocational expert’s specialized knowledge undoubtedly would be helpful in the present case, this is not to say that testimony from such an expert is required in this and every" }, { "docid": "11057753", "title": "", "text": "work involving climbing, walking long distances, or lifting more than 10 pounds, limitations consistent with sedentary work. See Tr. at 260-61. In addition, plaintiff’s residual functional capacity was evaluated in November 1979 by a physician who concluded that plaintiff could sit 8 hours, stand 8 hours, or walk 8 hours in an 8-hour work day. See Tr. at 119. He also determined that plaintiff could lift and carry up to 10 pounds occasionally and could bend, squat, crawl and climb occasionally, and that plaintiff could use both hands for grasping, pushing and pulling, and fine manipulation. See id. The above evidence, taken in conjunction with plaintiffs history of negative electrocardiograms, Hotter monitors, and echo-cardiogram, see, e.g., Tr. at 92, 94-95, 156, 270-71, provides substantial evidence to overcome even a treating physician’s determination of disability and supports the Secretary’s decision that plaintiff retained the residual functional capacity to do sedentary work until he attained age fifty. 2. Applicability of the Medical-Vocational Guidelines Because plaintiff has established that his impairments prevent him from performing his past relevant work, the burden shifts to the Secretary to prove that plaintiff still retains the residual functional capacity to perform alternative substantial work which exists in the national economy. See Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir.1986); Berry, supra, 675 F.2d at 467. Ordinarily, the Secretary can meet his burden by resorting to the grids. See Heckler v. Campbell, 461 U.S. 458, 467-68, 103 S.Ct. 1952, 1957-58, 76 L.Ed.2d 66 (1983); Bapp, supra, 802 F.2d at 604. But in a case where a plaintiff suffers from nonexertional impairments which “ ‘significantly limit the range of work permitted by his exertional limitations,’ ” use of the grids is inappropriate. See Bapp, supra, 802 F.2d at 605-06 (quoting Blacknall v. Heckler, 721 F.2d 1179, 1181 (9th Cir.1983) (per curiam)); see also 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(e)(2) (1987) & id. at § 200.00(a); Campbell, supra, 461 U.S. at 462 n. 5, 103 S.Ct. at 1955 n. 5. Thus, the threshold issue to be determined is whether plaintiff’s alleged nonexertional impairments— chest pains" }, { "docid": "15816586", "title": "", "text": "F.2d 601 (2d Cir.1986), “the mere existence of a nonexertional impairment does not automatically require the production of a vocational expert [ ]or preclude reliance on the [grids],” id. at 603. Rather, “the testimony of a vocational expert ... that jobs exist in the economy which claimant can obtain and perform” is required only where the “claimant’s nonexertional impairments significantly dimmish [her] ability to work— over and above any incapacity caused solely from exertional limitations — so that [s]he is unable to perform the full range of employment indicated by the [grids].” Id. We assess the need for a vocational expert “on a case-by-case basis,” id. at 605, and, in doing so, interpret the phrase “significantly diminish” to refer to an “additional loss of work capacity ... that so narrows a claimant’s possible range of work as to deprive [her] of a meaningful employment opportunity,” id. at 606. In assessing the extent to which Calabrese’s nonexertional limitations “erode[d] the unskilled sedentary occupational base” into which she would otherwise have been placed, the ALJ sought the assistance of a vocational expert. ALJ Op. at 18. Only after obtaining this expert’s opinion that Calabrese’s RFC, including any nonexertional impairments, would permit her to perform the full range of unskilled sedentary work did the ALJ apply grid rule 201.19 to conclude that Calabrese was not disabled. See id. In short, the ALJ did not consult a vocational expert to identify specific jobs that Calabrese could perform, but only to assist in determining whether Calabrese’s nonexertional limitations “significantly limit[ed] the range of work permitted by [her] exertional limitations,” Bapp v. Bowen, 802 F.2d at 605 (internal quotation marks omitted), and thus whether application of the grids was proper. In light of the ALJ’s ultimate finding that Calabrese’s “additional [nonexertional] limitations ha[d] little or no effect on [her] occupational base of unskilled sedentary work,” ALJ Op. at 18, the ALJ did not err in using the grids to determine Calabrese’s disability status. See Bapp v. Bowen, 802 F.2d at 605 (noting that, even in presence of nonexertional limitations, “[i]f the [grids] adequately reflect a claimant’s" }, { "docid": "2906885", "title": "", "text": "benefits only if he cannot perform any alternate gainful employment. See 20 C.F.R. § 416.920(f). The initial burden of establishing disability is on the claimant. See 42 U.S.C. § 423(d)(5). Once the claimant demonstrates that he is incapable of performing his past work, however, the burden shifts to the Commissioner to show that the claimant has the residual functional capacity to perform other substantial gainful activity in the national economy. See Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980). This may require the application of the Medical-Vocational Guidelines [“the grid”] which places claimants with severe exertional impairments who can no longer perform past work into grid categories according to their residual functional capacity, age, education and work experience, and dictates a conclusion of disabled or not disabled. See 20 C.F.R. § 404.1520(f). A proper application of the grid makes vocational testing unnecessary. The grid covers only exertional impairments; nonexertional impairments, including psychiatric disorders are not covered. See 20 C.F.R. § 200.00(e)(2). If the grid cannot be used, i.e., when nonexertional impairments are present or when exertional impairments do not fit squarely within grid categories, the testimony of a vocational expert is generally required to support a finding of residual functional capacity for substantial gainful activity. See Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir.1986). DISCUSSION As an initial matter, the ALJ denied plaintiffs request to reopen the two previous applications for SSI benefits. He cited his denial of the current application and the absence of new and material evidence as support for his finding that plaintiff failed to demonstrate good cause to warrant reopening the prior applications. (See R. 19.) Following the five step evaluation process, the ALJ determined that plaintiff has not engaged in substantial gainful activity since December 1, 1989. (See R. 27.) Although plaintiff presented medical evidence that she suffers from “a seizure disorder, asthma, cervical sprain status post a motor vehicle accident, headaches, an adjustment disorder with depressed features, and chronic right leg pain,” the ALJ found that her impairment does not meet or equal any listed impairment. (See R. 28.) The ALJ found" }, { "docid": "12259453", "title": "", "text": "Dictionary of Occupational Titles, each of the four jobs cited require the need to use the upper extremities. Plaintiff claims that Dr. Reiter acknowledge plaintiffs limitation of use with her upper extremity and therefore, reliance upon those four jobs was misplaced. (Dkt. No. 9, p. 4-5). At the fifth step of the sequential evaluation of disability, the Commissioner bears the responsibility of proving that plaintiff is capable of performing other jobs existing in significant numbers in the national economy in light of plaintiffs residual functional capacity, age, education, and past relevant work. 20 C.F.R. §§ 416.920, 416.960. Ordinarily, the Commissioner meets his burden at this step “by resorting to the applicable medical vocational guidelines (the grids), 20 C.F.R. Pt. 404, Subpt. P, App. 2 (1986).” Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir.1986). Sole reliance on the grids is inappropriate where the guidelines fail to describe the full extent of a claimant’s limitations. Id. at 606. For example, use of the grids as the exclusive framework for making a disability determination may be precluded where, as here, plaintiffs physical limitations are combined with non-exertional impairments which further limit the range of work he can perform. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir.1996). In these circumstances, the Commissioner must “introduce the testimony of a vocational expert (or other similar evidence) that jobs exist in the economy which claimant can obtain and perform.” Bapp, 802 F.2d at 603. A hypothetical question that does not present the full extent of a claimant’s impairments cannot provide a sound basis for vocational expert testimony. Bosmond v. Apfel, 1998 WL 851508, at *8 (S.D.N.Y.1998) (citation omitted); see also De Leon v. Secretary of Health and Human Servs., 734 F.2d 930, 936 (2d Cir.1984). If a hypothetical question does not include all of a claimant’s impairments, limitations and restrictions, or is otherwise inadequate, a vocational expert’s response cannot constitute substantial evidence to support a conclusion of no disability. Melligan v. Chater, 1996 WL 1015417, at *8 (W.D.N.Y.1996). The “[p]roper use of vocational testimony presupposes both an accurate assessment of the claimant’s physical and vocational" } ]

[ { "docid": "12300574", "title": "", "text": "the United States, initiated an action against the Board, the Federation, and a number of other unions with which the Board had collective bargaining agreements with similar provisions relating to childrearing leave. Acting upon Schafer’s complaint, the United States alleged that the appel-lees’ policy and practice with regard to childrearing leave, as contained in the collective bargaining agreement, constituted a pattern or practice of resistance to the full enjoyment by men and women of their right to employment without discrimination or classification based on sex. On March 13,1987, the United States and the appellees entered into a consent agreement and a decree was issued granting the Board’s male employees childrearing leave on the same basis as childrearing leave is •granted female employees. There were no findings on the merits nor any admission by the appellees of any violation of Title VII. The consent decree was prospective in nature and therefore no relief was granted to Gerald Schafer, who had resigned. On March 13, 1988, Schafer moved and was granted the right to intervene as a party plaintiff. Schafer’s complaint charged the Board and the Federation with sex discrimination in employment and sought reinstatement and back pay. On March 21, 1988, Schafer filed a motion for summary judgment, alleging that no material facts remained in dispute and that judgment should be entered as a matter of law. This motion was denied on October 6, 1988, although the court noted that Schafer had made out a prima facie case of discrimination against male employees. On August 9, 1989, appellees filed a joint motion for summary judgment, alleging that the leave policy was a permissible accommodation to females under California Federal Savings & Loan Association v. Guerra, 479 U.S. 272, 107 S.Ct. 683, 93 L.Ed.2d 613 (1987), and Harness v. Hartz Mountain Corporation, 877 F.2d 1307 (6th Cir.1989), cert. denied, — U.S. -, 110 U.S. 728, 107 L.Ed.2d 747, (1990). The district court granted the motion on September 15, 1989, interpreting the leave in question as one of maternity and not chil-drearing and concluding that Guerra permitted this favorable treatment to pregnant females." } ]

[ { "docid": "12300601", "title": "", "text": "a maximum of one (1) year, but may be of shorter duration. ... (Emphases added). . Schafer claims that he did not request reinstatement in December 1981 because his resignation had been accepted and he did not believe he had the option to return to his former job. This claim must be subject to the credibility determination of the fact-finder as to the reasons for his inaction. . Although Schafer’s motion to intervene named four defendants, the complaint named only two defendants, the Board and the Federation. . In Harness, a former employee brought a discrimination action alleging that the employer's pregnancy leave policy violated Kentucky’s counterpart to the Pregnancy Discrimination Act (PDA). 42 U.S.C. § 2000e(k). Female employees were permitted to take up to one year of unpaid leave for \"maternity related reasons,” while other employees were allowed a maximum of ninety days of unpaid sick leave for other disabilities. 877 F.2d at 1310. The Harness court concluded that this preferential treatment of pregnant employees did not violate Title VII, was permissible under the PDA, and was the kind of favorable treatment of pregnant employees which had received the specific approval of the Supreme Court. Id. The facts of Harness can be distinguished from the facts of the instant case in that the leave in question there was limited to maternity related reasons. The case at bar does not impose a requirement that the leave be related to pregnancy. Moreover, the appellees' reference to Harness is inapposite because that case involved an interpretation of Kentucky state law. . The collective bargaining agreement implies that the disability period contemplated is six weeks. Article 31, § 3(c) states that “[n]o medical examination may be required by the School Board for at least six (6) weeks after the birth of the child....\" . We do not suggest that Schafer has no burden to mitigate damages. This factor must also be taken into consideration. . The four factors were: 1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of" }, { "docid": "7053381", "title": "", "text": "in a disparate impact on pregnant teachers since the pregnant teachers are not forced into forgoing their paid sick days, but instead presumably choose to forgo them in favor of the longer maternity leave. Indeed, the dissent regards the availability of unpaid maternity leave as a gratuitous “extra option,” since maternity leave is not available to non-pregnant teachers. This fails to recognize that although maternity leave is not available to non-pregnant teachers, a similar general leave of absence is available to all teachers. Plaintiffs simply seek to be allowed to combine paid sick leave with unpaid maternity leave if the school districts allow or have failed to establish a legitimate policy against combination of paid sick leave and a general leave of absence. The dissent must then assume that no material question of fact exists regarding the existence of a policy prohibiting the combination of paid sick leave with any unpaid leave. We, on the other hand, hold that there is sufficient evidence to raise a question of fact as to whether Woodland had a legitimate “no-combination” policy in place prior to this lawsuit for both pregnant and non-pregnant teachers since no such policy was ever formally adopted or communicated to the teachers prior to this suit. Accordingly, we reverse and remand for such a determination. B. Maganuco v. Leyden As discussed above, in Maganuco Judge Plunkett granted the defendant Ley-den’s motion for summary judgment on the disparate treatment theory because he found that the policies discriminated on the basis of the forseeability of the disability, not on the basis of sex. Although rejecting this rationale, we affirm the grant of summary judgment. Like Woodland, Leyden asserts that it treats all teachers alike, that no Leyden teacher may take disability leave days during the period of a non-disability leave or schedule disability and non-disability leave to run consecutively, so that there is no facial discrimination to support Maganuco’s disparate treatment theory. Also like Woodland, Leyden has a written policy prohibiting a teacher from combining paid sick leave for the period of disability due to pregnancy and childbirth with unpaid maternity" }, { "docid": "238769", "title": "", "text": "the government advances. . This court's analysis in Scherr of the leave policy used by the Leyden School District does not apply to the appeal at hand. We found no disparate treatment regarding Leyden. Leyden required unpaid general leave to begin at the start of the school year and to terminate at the end of the school year. Therefore, no teacher could take paid sick leave immediately before taking unpaid general leave, because the summer recess prevented such a leave arrangement. Scherr v. Woodland Sch. Community Consol. Dist. No. 50, 867 F.2d 974, 983 (7th Cir.1988). In the subject appeal, unpaid leaves of absence could begin in mid-semester, which would allow back-to-back paid sick leave and unpaid general leave. . In early 1990, the Board and the Association changed the sick leave bank provision for the 1990-1993 CBA. The language excluding maternity benefits was dropped. . To show that the district court erred in its interpretation of the sick leave bank provision, the Board cites the “Memorandum of Understanding,” which the Board and the Association entered into in June 1988. The memorandum states: The Board of Education of Consolidated High School District No. 230 and the District No. 230 Teachers’ Association agree that Section 6.0154 of the 1987-1990 collective bargaining agreement between them is not intended to preclude female teachers disabled by pregnancy from making use of the sick leave bank. The Section 6.0154 reference to “maternity benefits” was intended only to clarify that pregnancy, childbirth, and child care do not, in and of themselves, automatically constitute either prolonged or extended catastrophic illness. Female teachers disabled by pregnancy shall have access to the sick leave bank on the same terms and subject to the same conditions as any other disabled teachers. The existence of the memorandum does not alter our decision to affirm the district court. The memorandum was issued in June 1988 after this lawsuit was filed. More important, the memorandum was not posted, distributed to teachers, or otherwise published. Pregnant teachers, then, were left with only the statement in the CBAs that “[withdrawals from the sick leave bank" }, { "docid": "238760", "title": "", "text": "incentive to delay.” (Emphasis added.) Here, the two teachers were the subject of a Title VII violation because they were denied the opportunity to apply for sick leave bank benefits while they were pregnant. The district court also awarded the prejudgment interest because the damages were reasonably ascertainable. Therefore, we find no abuse of discretion on the part of the district court, and we affirm. Id.; see also Donnelly v. Yellow Freight Sys., Inc., 874 F.2d 402, 411-12 (7th Cir.1989) (ruling that a district court should award prejudgment interest when the amount of damages is easily ascertainable), aff'd on other grounds, 494 U.S. 820, 110 S.Ct. 1566, 108 L.Ed.2d 834 (1990). III. Conclusion The district court properly found that the Board did not violate Title VII, as amended by the PDA, in applying its maternity leave policy. The district court properly found that the Board committed a Title VII violation in its application of the sick leave bank provision, and the district court properly awarded prejudgment interest to the two female teachers who were the subject of the Title VII violation. Consequently, the district court is Affirmed. . Parental leave was part of the general unpaid leaves of absence that the CBAs offered. Other general unpaid leaves were overseas teaching leave, exchange teaching leave, educational leave, personal illness leave (available for extended illness after sick leave has been exhausted), and \"other\" leaves. . The CBAs provided, in pertinent part, the following terms for unpaid maternity leave: 6.041 A pregnant teacher shall notify her principal in writing when her pregnancy is confirmed in order to be eligible to receive a maternity leave of absence. 6.042 A teacher shall not be required to resign or take a leave of absence because of pregnancy. Said teacher, however, may, in writing, request a leave of absence without pay. A maternity leave of absence may begin when the pregnant teacher desires, but not later than when she is unable to perform her duties satisfactorily. A maternity leave of absence for a period longer than one semester shall end on the day prior to the beginning" }, { "docid": "7053394", "title": "", "text": "Title VII inquiry ends. The majority has provided a reasonable answer to the government’s argument, however, and the question of whether the PDA authorizes disparate impact claims is a close one. But that broad question is one we need not decide because Scherr and Maganuco have failed to raise a genuine issue of material fact on their disparate impact claims. To succeed on a disparate impact claim under Title VII, a plaintiff must show “that a facially neutral employment practice has a significant adverse impact on members of a protected ... group.” Chambers v. Omaha Girls Club, 834 F.2d 697, 700 (8th Cir.1987) (emphasis added). In reversing on the disparate impact claims, the majority does not even identify the adverse impact the school districts’ leave plans have on pregnant teachers (or women teachers as a whole, for that matter). This is not surprising; Scherr and Maganueo have not shown that the school districts’ leave policies adversely affect women. Since Scherr and Maganueo have failed to make a sufficient showing to establish that an adverse impact exists, an essential element of their claim, summary judgment was proper. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The only evidence that Scherr produced in opposing Woodland’s summary judgment motions were statistics showing that since 1978, thirty Woodland teachers have taken leave because of pregnancy, and twenty-eight of those teachers have taken unpaid maternity leave instead of paid sick days. Maganueo produced similar statistics in opposing Leyden’s motion: since 1978, fifteen Leyden teachers have taken leave because of pregnancy, and twelve of those teachers used unpaid maternity leave instead of paid sick days. According to Scherr and Maganueo, these statistics show that the school districts’ leave plans deprive women of the use of paid sick leave because the leave plans “force” pregnant teachers to use unpaid leave rather than paid sick days. These statistics, however, do not demonstrate any disparate impact. The reason why becomes apparent if one assumes that only disability leave is available to pregnant teachers. Scherr and Maganueo have not alleged or attempted" }, { "docid": "21588069", "title": "", "text": "its intent not to require preferential treatment if in fact it had intended to prohibit such treatment.” Id. at 287, 107 S.Ct. at 693. In the present case, the pregnancy leave policy of Hartz gives preferential treatment to pregnant employees. Such employees are permitted to take up to one year of unpaid leave for “maternity related reasons.” Other employees, such as Harness, are allowed only 90 days of unpaid sick leave. Since the Guerra Court held, however, that such preferential treatment is permissible under the PDA, it follows that the preferential treatment accorded pregnant employees under the Hartz policy is permissible under KRS §§ 344.030(6) and 344.040(1). See Kentucky Comm’n on Human Rights, 586 S.W.2d at 271. We conclude that the Hartz policy did not effect discriminatory treatment of Harness in violation of the applicable Kentucky statutes. We therefore AFFIRM the district court’s grant of summary judgment in favor of Hartz Mountain Corporation. . Not only is a decision by the Supreme Court of the United States interpreting the federal statute \"most persuasive ... in interpreting the Kentucky statute,\" it should also be noted that the decision in the district court in this case was made by Hon. Thomas A. Ballantine, Jr., who was a state circuit judge for thirteen years before he became a federal district judge in 1979. We should give great weight to this district judge’s determination of state law. C. Wright, Law of Federal Courts § 58 (1976). DAVID A. NELSON, Circuit Judge, dissenting. I should like to concur, but the unambiguous language of the Kentucky statute makes it difficult for me to do so. Hartz Mountain’s leave policy, as the court’s opinion acknowledges, unquestionably discriminates in favor of pregnant employees. This is discrimination “because of sex,” within the meaning of those words as used in the Kentucky statute, because the statute explicitly says so: “The terms ‘because of sex’ or ‘on the basis of sex’ include ... because of or on the basis of pregnancy, childbirth, or related medical conditions_” KRS § 344.030(6). In a world governed by common sense, one might suppose, employers would" }, { "docid": "7053364", "title": "", "text": "paid sick leave from the sick-leave “bank.” Teachers who remain disabled after exhausting the sick-leave bank are eligible for unpaid “continuing illness” leave for the longer of 90 days or the remainder of the school year, although the Board of Education may at its discretion extend the leave for the duration of the disability. A teacher may elect to use disability leave (i.e., sick days, sick-bank days or continuing illness leave) during any period of disability related to her pregnancy and/or to the delivery of the child. Any teacher who elects disability leave must return to work immediately following the termination of the disability. Both school districts also provide unpaid maternity leave as of right. At Leyden, any tenured teacher who becomes pregnant will be granted a maternity leave of up to three semesters, commencing on the date her doctor considers her unable to carry on her teaching duties. The teacher must give the administration no less than 60 days notice prior to the leave and at least 90 days notice prior to the end of the preceding semester of the date when she wants to start work. The administration may delay her return until the beginning of the school year following her request to return. Any teacher who opts for maternity/child-rearing leave must forgo the benefit of receiving paid sick leave for the period she is actually disabled due to the child’s birth. However, paid sick leave is available prior to the commencement of a scheduled maternity/child-rearing leave if the teacher becomes ill, whether or not the illness is related to her pregnancy. The terms of Woodland’s unpaid maternity leave plan are provided in the Collective Bargaining Agreement between the teachers’ union and Woodland. Under the plan, teachers must schedule the leave in consultation with the Superintendent. The agreed-upon leave plan must be scheduled to take into consideration maintenance of continuity of instruction and medical factors to the maximum degree possible and must commence upon the earliest of (1) fifteen days prior to the anticipated delivery date, (2) the actual delivery date, or (3) the date on which the" }, { "docid": "7053380", "title": "", "text": "material fact exists, the district court must construe the facts alleged in the light most favorable to the party opposing the motion for summary judgment. Richardson v. Penfold, 839 F.2d 392, 394 (7th Cir.1988). Upon review, we must consider the entire record and all reasonable inferences drawn from the record in the same light. Id.; Jakubiec v. Cities Services Co., 844 F.2d 470, 471 (7th Cir.1988). There is substantial evidence to support Scherr’s contention that Woodland did not have a legitimate “no combination” policy applicable to non-pregnant teachers prior to her lawsuit. The purported policy was never formally adopted, never made the subject of collective bargaining, never communicated to those to whom it applied, and never actually applied. Whether Woodland has a no combination policy applicable to non-pregnant teachers is a genuine issue of material fact that goes to the heart of Scherr’s ability to make a prima facie case of dispár ate treatment. In his dissenting opinion, Judge Manion contends that the disability leave plans of the school districts, in isolation, do not result in a disparate impact on pregnant teachers since the pregnant teachers are not forced into forgoing their paid sick days, but instead presumably choose to forgo them in favor of the longer maternity leave. Indeed, the dissent regards the availability of unpaid maternity leave as a gratuitous “extra option,” since maternity leave is not available to non-pregnant teachers. This fails to recognize that although maternity leave is not available to non-pregnant teachers, a similar general leave of absence is available to all teachers. Plaintiffs simply seek to be allowed to combine paid sick leave with unpaid maternity leave if the school districts allow or have failed to establish a legitimate policy against combination of paid sick leave and a general leave of absence. The dissent must then assume that no material question of fact exists regarding the existence of a policy prohibiting the combination of paid sick leave with any unpaid leave. We, on the other hand, hold that there is sufficient evidence to raise a question of fact as to whether Woodland had a" }, { "docid": "7053395", "title": "", "text": "exists, an essential element of their claim, summary judgment was proper. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The only evidence that Scherr produced in opposing Woodland’s summary judgment motions were statistics showing that since 1978, thirty Woodland teachers have taken leave because of pregnancy, and twenty-eight of those teachers have taken unpaid maternity leave instead of paid sick days. Maganueo produced similar statistics in opposing Leyden’s motion: since 1978, fifteen Leyden teachers have taken leave because of pregnancy, and twelve of those teachers used unpaid maternity leave instead of paid sick days. According to Scherr and Maganueo, these statistics show that the school districts’ leave plans deprive women of the use of paid sick leave because the leave plans “force” pregnant teachers to use unpaid leave rather than paid sick days. These statistics, however, do not demonstrate any disparate impact. The reason why becomes apparent if one assumes that only disability leave is available to pregnant teachers. Scherr and Maganueo have not alleged or attempted to prove that the school districts’ disability leave plans are insufficient to allow a pregnant teacher to fully recover from her pregnancy-related disability and resume teaching, or that the disability leave policies adversely affect women’s employment opportunities in any other way. Cf. Nashville Gas Co. v. Satty, 434 U.S. 136, 98 S.Ct. 347, 54 L.Ed.2d 356 (1977) (leave plan that forced pregnant employees to take a formal leave after which they were denied accumulated seniority upon returning to work had a disparate impact on women); Hayes v. Shelby Memorial Hospital, 726 F.2d 1543 (11th Cir.1984) (pregnant x-ray technician fired because of facially-neutral offspring protection policy); Abraham v. Graphic Arts Intern. Union, 660 F.2d 811 (D.C.Cir.1981) (limiting leave to ten days had disparate impact on women because it made pregnancy “virtually tantamount to dismissal”); see also 29 C.F.R. § 1604.10(c) (EEOC regulations) (“Where the termination of an employee who is temporarily disabled is caused by an employment policy under which insufficient or no leave is available, such a termination violates [Title VII] if it has a" }, { "docid": "21588068", "title": "", "text": "Co., 662 S.W.2d 843 (Ky.Ct.App.1983); Kentucky Comm’n on Human Rights v. Kerns Bakery, Inc., 644 S.W.2d 350 (Ky.Ct.App.1982), cert. denied, 462 U.S. 1133, 103 S.Ct. 3115, 77 L.Ed.2d 1369 (1983). The Supreme Court in California Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 107 S.Ct. 683, 93 L.Ed.2d 613 (1987), held that the PDA did not preempt a California statute which provided for up to four months of unpaid pregnancy disability leave and did not require similar leave for other disabled employees. The Court concluded that the PDA permitted some preferential treatment of pregnant employees. “Accordingly, subject to certain limitations, we agree with the Court of Appeals’ conclusion that Congress intended the PDA to be ‘a floor beneath which pregnancy disability benefits may not drop — not a ceiling above which they may not rise.’ 758 F.2d, [390] at 396.” Id. 479 U.S. at 285, 107 S.Ct. at 692 (footnote omitted). After reviewing the legislative history of the PDA, the Court noted: “It is hardly conceivable that Congress would have extensively discussed only its intent not to require preferential treatment if in fact it had intended to prohibit such treatment.” Id. at 287, 107 S.Ct. at 693. In the present case, the pregnancy leave policy of Hartz gives preferential treatment to pregnant employees. Such employees are permitted to take up to one year of unpaid leave for “maternity related reasons.” Other employees, such as Harness, are allowed only 90 days of unpaid sick leave. Since the Guerra Court held, however, that such preferential treatment is permissible under the PDA, it follows that the preferential treatment accorded pregnant employees under the Hartz policy is permissible under KRS §§ 344.030(6) and 344.040(1). See Kentucky Comm’n on Human Rights, 586 S.W.2d at 271. We conclude that the Hartz policy did not effect discriminatory treatment of Harness in violation of the applicable Kentucky statutes. We therefore AFFIRM the district court’s grant of summary judgment in favor of Hartz Mountain Corporation. . Not only is a decision by the Supreme Court of the United States interpreting the federal statute \"most persuasive ... in" }, { "docid": "19799552", "title": "", "text": "cannot and do not receive,” 434 U.S. at 142, 98 S.Ct. at 351; rather, it plainly constituted a denial of employment opportunities. And because the Board’s reinstatement policy denied employment opportunities on the basis of pregnancy, under the rationale of Satty it “imposed on women a substantial burden that men need not suffer.” 434 U.S. at 142,98 S.Ct. at 351. It follows that absent a business justification, the Board’s refusal to reinstate the teachers constituted an unlawful employment practice under § 703(a)(2) of Title VI. See Harper v. Thiokol Chemical Corp., 619 F.2d 489 (5th Cir. 1980) (employer’s policy of requiring women who had been on pregnancy leave to have sustained a normal menstrual cycle before they could return to work constituted unlawful sex discrimination); In re Southwestern Bell Telephone Co. Maternity Benefits Litigation, 602 F.2d 845, 849 (8th Cir. 1979) (employer’s policy of guaranteeing reinstatement to job position held prior to leave to employees returning from disability leave other than pregnancy, while failing to guarantee reinstatement to female employees returning from maternity leave violated Title VII); Pennington v. Lexington School District, 578 F.2d 546, 548—49 (4th Cir. 1978) (employer’s reinstatement policy requiring physically fit female teachers to remain on leave for an entire school year after pregnancy while allowing employees absent for other disabilities to return to work constitutes illegal sex discrimination absent business necessity); cf. deLaurier v. San Diego Unified School District, 588 F.2d 674, 684-85 (9th Cir. 1978) (employer’s policy denying use of accumulated sick leave benefits for maternity leave violated Title VII by discriminating against female teachers on the basis of sex). (b) Business Necessity Though the teachers proved that the Board’s facially neutral reinstatement policy had the effect of depriving women of employment opportunities because of their sex, we must nevertheless consider whether the Board’s refusal to reinstate the teachers was brought about by a “business necessity.” Such a justification is a defense to Title VII liability. See Satty, 434 U.S. at 143, 98 S.Ct. at 352; Dothard v. Rawlinson, 433 U.S. 321, 331-32 n.14, 97 S.Ct. 2720, 2727-28 n.14, 53 L.Ed.2d 786 (1977); Griggs" }, { "docid": "7053366", "title": "", "text": "teacher becomes unable to perform her duties. The leave cannot exceed the balance of the school term in which it commences and one additional term, and every effort must be made to have the leave terminate prior to the start of a new school term. A teacher who elects to take a maternity leave and then becomes ill prior to the scheduled commencement of the leave, may use her sick days even if the illness is due to her pregnancy. However, the collective bargaining agreement expressly states that sick leave is not applicable during the period of the maternity leave; as a result, since maternity leave must begin at the latest date prior to the actual delivery date, a pregnant teacher who chooses maternity leave cannot take paid sick days for the period during which she is disabled. Woodland’s maternity leave policy also expressly states that nothing in the policy shall be construed as requiring any teacher to apply for a maternity leave and reasserts the independent option of using accumulated sick leave during any period of disability related to her pregnancy or the delivery of the child and returning to work immediately following the termination of the disability- Finally, both school districts provide for an unpaid general leave of absence. Under the Leyden policy, any tenured teacher may request a leave of absence and at least one-half of those applying each year must be granted this leave. In practice, all ten requests for general leave during the time period relevant to this case were granted. General leaves of absence at Leyden must begin and end in conformance with the school year. Woodland offers, at the Board’s discretion, an unpaid leave of absence of up to one year. Such requests are normally granted and may begin at any agreed-upon time. Nothing in either of the school district’s leave policies precludes a pregnant teacher from using this leave instead of maternity leave. II The defendant school districts, aided by the United States as amicus curiae, raise an argument that questions the theoretical foundations of the PDA. They contend that the PDA" }, { "docid": "7053367", "title": "", "text": "period of disability related to her pregnancy or the delivery of the child and returning to work immediately following the termination of the disability- Finally, both school districts provide for an unpaid general leave of absence. Under the Leyden policy, any tenured teacher may request a leave of absence and at least one-half of those applying each year must be granted this leave. In practice, all ten requests for general leave during the time period relevant to this case were granted. General leaves of absence at Leyden must begin and end in conformance with the school year. Woodland offers, at the Board’s discretion, an unpaid leave of absence of up to one year. Such requests are normally granted and may begin at any agreed-upon time. Nothing in either of the school district’s leave policies precludes a pregnant teacher from using this leave instead of maternity leave. II The defendant school districts, aided by the United States as amicus curiae, raise an argument that questions the theoretical foundations of the PDA. They contend that the PDA is a sweeping mandate of equal treatment, but does not contemplate disparate impact claims. They find support for this contention in both the plain language and legislative history of the PDA. From the language of the statute they emphasize the portion that states, “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes.” 42 U.S.C. § 2000e(k) (emphasis added). From the legislative history they argue that “[t]he primary purpose of the PDA was to eliminate the need for employees to rely on disparate impact analysis to support their Title VII claims based on pregnancy classifications ‘[b]y making clear that distinctions based on pregnancy are per se violations of Title VII.’ ” (H.R. Rep. No. 95-948, 95th Cong., 2d Sess. 3 (1978) U.S.Code Cong. & Admin.News 1978, pp. 4749, 4751). By the same token, Congress intended that disparate impact analysis would play no role in the pregnancy context after passage of the PDA. (Br. of the United States at 19.) In their arguments, the defendants err by neglecting" }, { "docid": "7053397", "title": "", "text": "disparate impact on employees of one sex and is not justified by business necessity.”). (Emphasis added.) It is also obvious that if only disability leave were available, Scherr and Maganueo could make no argument that pregnant teachers are “forced” to forego using sick days. In short, the school districts’ disability leave plans, standing alone, work no disparate impact on women. That being so, I fail to see how adding extra options for pregnant teachers (one of which, maternity leave, is not even available to other teachers) works a disparate impact on women. If anything, the extra option not available to other teachers is a benefit to pregnant teachers. As Judge Williams noted, Scherr’s and Maganuco’s statistics “show only that pregnant teachers would rather take the longer maternity leave than the shorter paid sick leave when they become disabled due to pregnancy.” Scherr v. Woodland Community Consolidated School Dist. No. 50, No. 84 C 10185, slip op. at 10. The school districts’ leave policies do not “force” the teachers to give up sick days; instead, the teachers presumably choose to forego paid sick days because they want to spend more time at home after their pregnancy rather than immediately return to work when their pregnancy-related disabilities end. What Scherr and Maganuco want is a maternity leave plan that provides the best of both the disability leave plan (paid sick days for childbirth and its related disabilities) and the present maternity leave plan (extended time at home for child care), even if a comparable plan is not available to other teachers who need sick leave. In essence, they contend that Title VII mandates time off for child care, over and above a sufficient period of time to recover from pregnancy-related disability and return to work. While this may be desirable policy, it is a policy that Scherr and Maga-nuco must pursue in Congress, in the state legislature, or through the collective bargaining process, not in the federal courts. It was not improper, as the majority implies, Majority Opinion at 983, for Judge Williams to apply the reasoning from her decision in Scherr’s" }, { "docid": "7053365", "title": "", "text": "of the preceding semester of the date when she wants to start work. The administration may delay her return until the beginning of the school year following her request to return. Any teacher who opts for maternity/child-rearing leave must forgo the benefit of receiving paid sick leave for the period she is actually disabled due to the child’s birth. However, paid sick leave is available prior to the commencement of a scheduled maternity/child-rearing leave if the teacher becomes ill, whether or not the illness is related to her pregnancy. The terms of Woodland’s unpaid maternity leave plan are provided in the Collective Bargaining Agreement between the teachers’ union and Woodland. Under the plan, teachers must schedule the leave in consultation with the Superintendent. The agreed-upon leave plan must be scheduled to take into consideration maintenance of continuity of instruction and medical factors to the maximum degree possible and must commence upon the earliest of (1) fifteen days prior to the anticipated delivery date, (2) the actual delivery date, or (3) the date on which the teacher becomes unable to perform her duties. The leave cannot exceed the balance of the school term in which it commences and one additional term, and every effort must be made to have the leave terminate prior to the start of a new school term. A teacher who elects to take a maternity leave and then becomes ill prior to the scheduled commencement of the leave, may use her sick days even if the illness is due to her pregnancy. However, the collective bargaining agreement expressly states that sick leave is not applicable during the period of the maternity leave; as a result, since maternity leave must begin at the latest date prior to the actual delivery date, a pregnant teacher who chooses maternity leave cannot take paid sick days for the period during which she is disabled. Woodland’s maternity leave policy also expressly states that nothing in the policy shall be construed as requiring any teacher to apply for a maternity leave and reasserts the independent option of using accumulated sick leave during any" }, { "docid": "238768", "title": "", "text": "shall be eligible to receive from the sick leave bank an additional 12 days of sick leave. 6.0154 Withdrawal from the sick leave bank shall be available only for a teacher’s prolonged and extended catastrophic illness and shall not be available for maternity benefits, elective surgery, illness of family or household members, and/or death of family or household members. 6.0155 The teacher, in his/her application to the Board, shall set forth the nature of the illness, together with written verification of the illness and prognosis for recovery from a licensed physician.... . \"The plain meaning of the PDA, its legislative history, and the Supreme Court’s subsequent discussions of the origins and purposes of the Act all suggest that its scope is limited to policies which impact or treat medical conditions relating to pregnancy and childbirth less favorably than other disabilities.” Maganuco v. Leyden Community High Sch. Dist. 212, 939 F.2d 440, 444 (7th Cir.1991). . Although the Association was a codefendant with the Board below, it has filed a brief on appeal endorsing the position the government advances. . This court's analysis in Scherr of the leave policy used by the Leyden School District does not apply to the appeal at hand. We found no disparate treatment regarding Leyden. Leyden required unpaid general leave to begin at the start of the school year and to terminate at the end of the school year. Therefore, no teacher could take paid sick leave immediately before taking unpaid general leave, because the summer recess prevented such a leave arrangement. Scherr v. Woodland Sch. Community Consol. Dist. No. 50, 867 F.2d 974, 983 (7th Cir.1988). In the subject appeal, unpaid leaves of absence could begin in mid-semester, which would allow back-to-back paid sick leave and unpaid general leave. . In early 1990, the Board and the Association changed the sick leave bank provision for the 1990-1993 CBA. The language excluding maternity benefits was dropped. . To show that the district court erred in its interpretation of the sick leave bank provision, the Board cites the “Memorandum of Understanding,” which the Board and the Association" }, { "docid": "12300575", "title": "", "text": "party plaintiff. Schafer’s complaint charged the Board and the Federation with sex discrimination in employment and sought reinstatement and back pay. On March 21, 1988, Schafer filed a motion for summary judgment, alleging that no material facts remained in dispute and that judgment should be entered as a matter of law. This motion was denied on October 6, 1988, although the court noted that Schafer had made out a prima facie case of discrimination against male employees. On August 9, 1989, appellees filed a joint motion for summary judgment, alleging that the leave policy was a permissible accommodation to females under California Federal Savings & Loan Association v. Guerra, 479 U.S. 272, 107 S.Ct. 683, 93 L.Ed.2d 613 (1987), and Harness v. Hartz Mountain Corporation, 877 F.2d 1307 (6th Cir.1989), cert. denied, — U.S. -, 110 U.S. 728, 107 L.Ed.2d 747, (1990). The district court granted the motion on September 15, 1989, interpreting the leave in question as one of maternity and not chil-drearing and concluding that Guerra permitted this favorable treatment to pregnant females. On October 12, 1989, Schafer filed a notice of appeal from both the October 6, 1988 order denying his summary judgment motion and the September 15, 1989 order granting summary judgment for the appel-lees. Our review of the district court’s order granting appellees’ summary judgment motion and denying appellant’s summary judgment motion is plenary. Our review of the district court’s determination that there was sufficient basis to permit Schafer to maintain a Title VII action against the Federation is also plenary. II. Appellees’ Motion for Summary Judgment Federal Rule of Civil Procedure 56 provides that a district court may grant a summary judgment only when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judg ment as a matter of law.” Fed.R.Civ.P. 56(c). Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.), cert. dismissed, 483 U.S. 1052, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987). See also" }, { "docid": "7053396", "title": "", "text": "to prove that the school districts’ disability leave plans are insufficient to allow a pregnant teacher to fully recover from her pregnancy-related disability and resume teaching, or that the disability leave policies adversely affect women’s employment opportunities in any other way. Cf. Nashville Gas Co. v. Satty, 434 U.S. 136, 98 S.Ct. 347, 54 L.Ed.2d 356 (1977) (leave plan that forced pregnant employees to take a formal leave after which they were denied accumulated seniority upon returning to work had a disparate impact on women); Hayes v. Shelby Memorial Hospital, 726 F.2d 1543 (11th Cir.1984) (pregnant x-ray technician fired because of facially-neutral offspring protection policy); Abraham v. Graphic Arts Intern. Union, 660 F.2d 811 (D.C.Cir.1981) (limiting leave to ten days had disparate impact on women because it made pregnancy “virtually tantamount to dismissal”); see also 29 C.F.R. § 1604.10(c) (EEOC regulations) (“Where the termination of an employee who is temporarily disabled is caused by an employment policy under which insufficient or no leave is available, such a termination violates [Title VII] if it has a disparate impact on employees of one sex and is not justified by business necessity.”). (Emphasis added.) It is also obvious that if only disability leave were available, Scherr and Maganueo could make no argument that pregnant teachers are “forced” to forego using sick days. In short, the school districts’ disability leave plans, standing alone, work no disparate impact on women. That being so, I fail to see how adding extra options for pregnant teachers (one of which, maternity leave, is not even available to other teachers) works a disparate impact on women. If anything, the extra option not available to other teachers is a benefit to pregnant teachers. As Judge Williams noted, Scherr’s and Maganuco’s statistics “show only that pregnant teachers would rather take the longer maternity leave than the shorter paid sick leave when they become disabled due to pregnancy.” Scherr v. Woodland Community Consolidated School Dist. No. 50, No. 84 C 10185, slip op. at 10. The school districts’ leave policies do not “force” the teachers to give up sick days; instead, the" }, { "docid": "12300600", "title": "", "text": "time (or unpaid leave if the employee has exhausted all of her sick leave days) is used, the maternity leave entitlement continues not to be applicable to the involved female employee. However, leaves without Board pay for personal reasons relating to childbearing or childrearing, if they commence immediately following such sick leave absence (either paid or unpaid) due to childbirth and the period of recovery immediately thereafter, shall be available to female teachers and other female personnel. Such leaves shall not exceed one (1) year in length from the date of their inception, but may be of shorter duration as requested by the female applicant. This sick leave provision is applicable to all female personnel. No medical examination may be required by the School Board for at least six (6) weeks after the birth of the child; however, the period of absence under sick leave provisions may only be for any period of disability, d. Persons on maternity leave are covered under Section 5 and Section 6 of this Article. Maternity leave is limited to a maximum of one (1) year, but may be of shorter duration. ... (Emphases added). . Schafer claims that he did not request reinstatement in December 1981 because his resignation had been accepted and he did not believe he had the option to return to his former job. This claim must be subject to the credibility determination of the fact-finder as to the reasons for his inaction. . Although Schafer’s motion to intervene named four defendants, the complaint named only two defendants, the Board and the Federation. . In Harness, a former employee brought a discrimination action alleging that the employer's pregnancy leave policy violated Kentucky’s counterpart to the Pregnancy Discrimination Act (PDA). 42 U.S.C. § 2000e(k). Female employees were permitted to take up to one year of unpaid leave for \"maternity related reasons,” while other employees were allowed a maximum of ninety days of unpaid sick leave for other disabilities. 877 F.2d at 1310. The Harness court concluded that this preferential treatment of pregnant employees did not violate Title VII, was permissible under the" }, { "docid": "238761", "title": "", "text": "subject of the Title VII violation. Consequently, the district court is Affirmed. . Parental leave was part of the general unpaid leaves of absence that the CBAs offered. Other general unpaid leaves were overseas teaching leave, exchange teaching leave, educational leave, personal illness leave (available for extended illness after sick leave has been exhausted), and \"other\" leaves. . The CBAs provided, in pertinent part, the following terms for unpaid maternity leave: 6.041 A pregnant teacher shall notify her principal in writing when her pregnancy is confirmed in order to be eligible to receive a maternity leave of absence. 6.042 A teacher shall not be required to resign or take a leave of absence because of pregnancy. Said teacher, however, may, in writing, request a leave of absence without pay. A maternity leave of absence may begin when the pregnant teacher desires, but not later than when she is unable to perform her duties satisfactorily. A maternity leave of absence for a period longer than one semester shall end on the day prior to the beginning of any school year up to and including 5 school semesters after the maternity leave of absence begins. The Superintendent may, however, permit a maternity leave of absence to end on the day prior to the beginning of a school semester up to and including 4 school semesters after the maternity leave of absence begins. However, sick leave shall not be utilized by the teacher in conjunction with the maternity leave. A teacher wishing to utilize accumulated sick leave shall be allowed to do so for the period that her physician determines that she is unable to perform her teaching duties as a result of the pregnancy and/or delivery of the child. The teacher shall submit periodic statements from her physician attesting to the condition of her health. If a teacher shall have exhausted accumulated sick leave, she shall be granted a leave of absence without pay during such period. Failure of the teacher to return to duty after her physician determines she is medically able to perform her teaching duties shall be treated as" } ]

[ { "docid": "20628727", "title": "", "text": "as other contracts.’ ” EEOC v. Waffle House, Inc., 534 U.S. 279, 289, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002) (quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991)). Thus, our task in assessing the arbitrability of a dispute “primarily is one of contract interpretation,” Summer Rain v. Donning Co., 964 F.2d 1455, 1460 (4th Cir.1992), and we are obliged to give effect to the intentions of the parties as expressed in their agreement, see Cara’s Notions, Inc. v. Hallmark Cards, Inc., 140 F.3d 566, 569 (4th Cir.1998) (observing that “a court may not require a party to submit to arbitration any dispute which he has not agreed so to submit” (internal quotation marks omitted)). Any ambiguities regarding the scope of an arbitration clause, however, are to be resolved in favor of arbitration. See Volt Info. Sci., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 475-76, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989). Against the backdrop of these controlling principles, we assess in turn Wachovia’s contentions that the arbitration clauses contained in the Note and the Warrant oblige the Schmidt Defendants to arbitrate their state-court claims. A. As explained above, the Note’s arbitration clause permits either party to compel arbitration of “any claim or controversy arising out of, or relating to” the Note. We have consistently held that an arbitration clause encompassing all disputes “arising out of or relating to” a contract embraces “every dispute between the parties having a significant relationship to the contract regardless of the label attached to a dispute.” Am. Recovery Corp. v. Computerized Thermal Imaging, Inc., 96 F.3d 88, 93 (4th Cir.1996) (quoting J.J. Ryan & Sons v. Rhone Poulenc Textile, S.A., 863 F.2d 315, 321 (4th Cir.1988)); see also Long v. Silver, 248 F.3d 309, 316-17 (4th Cir.2001) (ruling that, where agreement required arbitration of any dispute “arising out of or relating to” agreement, the “governing standard” is whether claims have “significant relationship” thereto). Thus, the initial question we face in this appeal is whether the Schmidt Defendants’ state-court claims are" } ]

[ { "docid": "5619436", "title": "", "text": "the absence of any contention from the parties to the contrary, we apply federal common law to resolve the issues. InterGen, 344 F.3d at 143. The context of the case is significant. The party who is a signatory to the written agreement requiring arbitration is the party seeking to avoid arbitration. “A party who attempts to compel arbitration must show that a valid agreement to arbitrate exists, that the movant is entitled to invoke the arbitration clause, that the other party is bound by that clause, and that the claim asserted comes within the clause’s scope.” Id. at 142. Defendants argue that although Asimco did not sign an arbitration agreement, Jumpsource bound itself to arbitrate claims of this nature by virtue of the arbitration clause in the Jumpsource-ATL Agreement and is es-topped from litigating claims against Asimco that essentially arise from the terms of the Jumpsource-ATL contract. Equitable estoppel “precludes a party from enjoying rights and benefits under a contract while at the same time avoiding its burdens and obligations.” Id. at 145. Federal courts “have been willing to estop a signatory from avoiding arbitration with a nonsignatory when the issues the nonsignatory is seeking to resolve in arbitration are intertwined with the agreement that the estopped party has signed.” Id. (quoting Thomson-CSF, S.A. v. Am. Arbitration Ass’n, 64 F.3d 773, 779 (2d Cir.1995)) (internal quotation marks omitted); see also Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753, 757-58 (11th Cir.1993) (estopping signatory from avoiding arbitration with non-signatory); Deloitte Noraudit A/S v. Deloitte Haskins & Sells, U.S., 9 F.3d 1060, 1063-64 (2d Cir.1993) (applying estoppel to bind non-signatory to arbitrate international dispute); J.J. Ryan & Sons, Inc. v. Rhone Poulenc Textile, S.A, 863 F.2d 315, 320-21 (4th Cir.1988) (referring non-signatory parent, along with signatory subsidiary, to international arbitration). There is no real issue in this case about whether the subject matter of the suit is intertwined with the subject matter within the scope of the arbitration clause. The analysis turns on the defendants allegedly not having executed a written agreement to arbitrate. The present dispute is sufficiently" }, { "docid": "5123021", "title": "", "text": "1924 (stating that “the law ... insist[s] on clarity before concluding that the parties did not want to arbitrate a related matter”). In other words, the federal body of law relating to arbitration agreements instructs “that questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration____ The Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” Moses Cone, 460 U.S. at 24-25, 103 S.Ct. at 941. The policy favoring enforcement of arbitration agreements applies with particular force in the context of international commercial transactions subject to chapter two of the FAA This special solicitude for arbitration agreements involving international trade derives from “concerns of international comity, respect for the capacities of foreign and transnational tribunals, and sensitivity to the need of the international commercial system for predictability in the resolution of disputes.” Mitsubishi Motors, 473 U.S. at 629, 105 S.Ct. at 3355 (allowing arbitration of antitrust claims in an international transaction “even assuming that a contrary result would be forthcoming in a domestic context”); see also Scherk v. Alberto-Culver Co., 417 U.S. 506, 515-20, 94 S.Ct. 2449, 2455-57, 41 L.Ed.2d 270 (1974); J.J. Ryan & Sons, Inc. v. Rhone Poulenc Textile, S.A, 863 F.2d 315, 320 (4th Cir.1988). In heeding the Supreme Court’s admonition to interpret expansively agreements to arbitrate, the Fourth Circuit employs a fact-based approach to determining the scope of arbitral issues. In J.J. Ryan, the Fourth Circuit was called upon to construe an international distribution agreement between a domestic importer and four foreign manufacturing affiliates of a French corporation. The court endorsed an approach to construing the scope of arbitrable claims which looks to the factual basis of the claim and its connection with the arbitration clause. The court instructed that “[t]o decide whether an arbitration agreement encompasses a dispute a court must determine whether the factual allegations underlying the" }, { "docid": "22301289", "title": "", "text": "of joint venture shall be settled through binding arbitration.’ ” Id. at 1461 (emphasis added) (quoting the arbitration clause in part). The court found that the phrase “arising hereunder” was synonymous with “arising under the Agreement^]” a phrase that had previously been construed to be “ ‘relatively narrow as arbitration clauses go.’ ” Id. at 1464 (quoting Sinva, Inc. v. Merrill, Lynch, Pierce, Fenner & Smith, Inc., 253 F.Supp. 359, 364 (S.D.N.Y.1966)). The court then concluded that the clause limited the arbitration of disputes to those that “relat[ed] to the interpretation and per- formanee of the contract itself[,]” noting that this formulation was much narrower than “the arising out of or relating to” standard recommended by the American Arbitration Association. Id. Thus, the Ninth Circuit explicitly held that the tortious interference and quantum meruit claims were not arbitra-ble in the presence of a narrow arbitration clause, the scope of which was limited to disputes relating to the interpretation and performance of the contract containing the arbitration clause itself. In contrast, ARC and CTI agreed through the arbitration clause in the consulting agreement to arbitrate any dispute that “arfóse] out of or related to ” the consulting agreement. (J.A. at 132.) Both the Supreme Court and this court have characterized similar formulations to be broad arbitration clauses capable of an expansive reach. See Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 398, 87 S.Ct. 1801, 1803, 18 L.Ed.2d 1270 (1967) (labelling as “broad” a clause that required arbitration of “[a]ny controversy or claim arising out of or relating to this Agreement”); J.J. Ryan & Sons v. Rhone Poulenc Textile, S.A., 863 F.2d 315, 321 (4th Cir.1988) (after declaring that the scope of a clause providing for the arbitration of “[a]ll disputes arising in connection with” a contract was identical to that of a clause providing for the arbitrability of disputes that “may arise out of or in relation to” an agreement, construing the arbitration clause “to encompass a broad scope of arbi-trable issues” (alteration in original)). In J.J. Ryan & Sons, we distinguished narrow arbitration clauses that" }, { "docid": "22451700", "title": "", "text": "submit.” United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); see also AT & T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986). While a contract cannot bind parties to arbitrate disputes they have not agreed to arbitrate, “[i]t does not follow ... that under the [Federal Arbitration] Act an obligation to arbitrate attaches only to one who has personally signed the written arbitration provision.” Fisser v. International Bank, 282 F.2d 231, 233 (2d Cir.1960). Rather, a party can agree to submit to arbitration by means other than personally signing a contract containing an arbitration clause. Well-established common law principles dictate that in an appropriate case a nonsignatory can enforce, or be bound by, an arbitration provision within a contract executed by other parties. For example, in J.J. Ryan & Sons v. Rhone Poulenc Textile, S.A., 863 F.2d 315, 320-21 (4th Cir.1988), we explained that when allegations against “a parent company and its subsidiary are based on the same facts and are inherently inseparable, a court may refer claims against the parent to arbitration even though the parent is not formally a party to the arbitration agreement.” We further explained that “[t]he same result has been reached under a theory of equitable estoppel.” Id.; see also Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753, 757 (11th Cir.1993) (holding that because claims against nonsignatory parent were “intimately founded in and intertwined with” a contract containing an arbitration clause, signatory was estopped from refusing to arbitrate those claims); Hughes Masonry Co. v. Greater Clark County Sch. Bldg. Corp., 659 F.2d 836, 840-41 (7th Cir.1981) (finding signatory equitably estopped from repudiating arbitration clause in agreement on which suit against nonsignatory was based). Moreover, the Second Circuit recently noted that it had recognized that five theories “aris[ing] out of common law principles of contract and agency law” could provide a basis “for binding nonsig-natories to arbitration agreements: 1) incorporation by references; 2) assumption; 3) agency; 4) veil piercing/alter ego; and 5) estoppel.” Thomson-CSF," }, { "docid": "23501684", "title": "", "text": "court agreed and ordered the parties to submit Adkins’ claims to arbitration in accordance with the terms of the arbitration agreement. The court then dismissed the action on the ground that all of the issues presented in the suit were arbitrable. See Choice Hotels Int’l v. BSR Tropicana Resort, 252 F.3d 707, 709-10 (4th Cir.2001). Adkins appeals. II. The FAA reflects “a liberal federal policy favoring arbitration agreements.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). Underlying this policy is Congress’s view that arbitration constitutes a more efficient dispute resolution process than litigation. Hightower v. GMRI, Inc., 272 F.3d 239, 241 (4th Cir.2001). Accordingly, “due regard must be given to the federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself resolved in favor of arbitration.” Volt Info. Sciences, Inc. v. Bd. of Tr. of Leland Stanford Jr. Univ., 489 U.S. 468, 475-76, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989). The FAA requires a court to stay “any suit or proceeding” pending arbitration of “any issue referable to arbitration under an agreement in writing for such arbitration.” 9 U.S.C. § 3. This stay-of-litigation provision is mandatory. A district court therefore has no choice but to grant a motion to compel arbitration where a valid arbitration agreement exists and the issues in a case fall within its purview. United States v. Bankers Ins. Co., 245 F.3d 315, 319 (4th Cir.2001). Thus mindful of the “clear federal directive in support of arbitration,” Hightower, 272 F.3d at 242, we proceed to the analysis of the district court’s order compelling arbitration. III. In the Fourth Circuit, a litigant can compel arbitration under the FAA if he can demonstrate “(1) the existence of a dispute between the parties, (2) a written agreement that includes an arbitration provision which purports to cover the dispute, (3) the relationship of the transaction, which is evidenced by the agreement, to interstate or foreign commerce, and (4) the failure, neglect or refusal of the defendant to arbitrate the dispute.” Whiteside v. Teltech Corp.," }, { "docid": "7300171", "title": "", "text": "such as one contemplated under the FCA. See, e.g., United States v. Carter, 454 F.2d 426, 428 (4th Cir.1972) (contract signed by an authorized official of the Government bound the entire Government, because “[t]he United States government is the United States government throughout all of the states and districts”); Harvey, 791 F.2d at 303 (4th Cir.1986) (same); see also H.F. Allen Orchards v. United States, 749 F.2d 1571, 1575 (Fed.Cir.1984) (to recover for breach of contract against Government, plaintiff must show “that the officer whose conduct is relied upon had actual authority to bind the government in contract”). b. In the final analysis, the Government comes to court in the same position as any other plaintiff, except that one of its four theories of recovery, the FCA claim, is premised on a unique statutory right. Statutory civil claims are subject to the arbitration process, and the Government has demonstrated no valid basis for placing the FCA claim in a different category. In deciding whether the arbitration agreement applies, we “must determine whether the factual allegations underlying the claim are within the scope of the arbitration clause, regardless of the legal label assigned to the claim.” J.J. Ryan & Sons, Inc. v. Rhone Poulenc Textile, S.A., 863 F.2d 315, 319 (4th Cir.1988) (citing Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 622 n. 9, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)). Whether there has been a civil violation of the FCA depends on the duties imposed on Bankers by the Arrangement, measured against its compliance thereunder. Such issues, involving civil claims for money damages, could well be fully resolved by arbitration. Finally, where the Government has previously agreed to an arbitration process, the statutory authority of the Attorney General is not compromised by that agreement being honored. As Justice Brandéis cogently observed years ago, “In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.” Olmstead v. United States," }, { "docid": "5123022", "title": "", "text": "the resolution of disputes.” Mitsubishi Motors, 473 U.S. at 629, 105 S.Ct. at 3355 (allowing arbitration of antitrust claims in an international transaction “even assuming that a contrary result would be forthcoming in a domestic context”); see also Scherk v. Alberto-Culver Co., 417 U.S. 506, 515-20, 94 S.Ct. 2449, 2455-57, 41 L.Ed.2d 270 (1974); J.J. Ryan & Sons, Inc. v. Rhone Poulenc Textile, S.A, 863 F.2d 315, 320 (4th Cir.1988). In heeding the Supreme Court’s admonition to interpret expansively agreements to arbitrate, the Fourth Circuit employs a fact-based approach to determining the scope of arbitral issues. In J.J. Ryan, the Fourth Circuit was called upon to construe an international distribution agreement between a domestic importer and four foreign manufacturing affiliates of a French corporation. The court endorsed an approach to construing the scope of arbitrable claims which looks to the factual basis of the claim and its connection with the arbitration clause. The court instructed that “[t]o decide whether an arbitration agreement encompasses a dispute a court must determine whether the factual allegations underlying the claim are within the scope of the arbitration clause, regardless of the legal label assigned to the claim.” J.J. Ryan, 863 F.2d at 319 (citing Mitsubishi Motors, 473 U.S. at 622 n. 9, 105 S.Ct. at 3351 n. 9). Applying this standard, the court first considered the arbitration clause at issue. The clause read: “All disputes arising in connection with the present contract shall be finally settled under the Rules of Conciliation and Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the Rules.” Id. at 318. After noting that the federal policy favoring arbitration applies ‘“with special force in the field of international commerce,’ ” id. at 319 (quoting Mitsubishi Motors, 473 U.S. at 631, 105 S.Ct. at 3356), the court affirmed the district court’s referral of the following claims to arbitration: unfair trade practices, intentional and tortious interference with contract, conversion, abuse of process, libel, defamation, and injurious falsehood. The court held that these claims fell under the scope of the arbitration clause because they “involved" }, { "docid": "7300172", "title": "", "text": "underlying the claim are within the scope of the arbitration clause, regardless of the legal label assigned to the claim.” J.J. Ryan & Sons, Inc. v. Rhone Poulenc Textile, S.A., 863 F.2d 315, 319 (4th Cir.1988) (citing Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 622 n. 9, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)). Whether there has been a civil violation of the FCA depends on the duties imposed on Bankers by the Arrangement, measured against its compliance thereunder. Such issues, involving civil claims for money damages, could well be fully resolved by arbitration. Finally, where the Government has previously agreed to an arbitration process, the statutory authority of the Attorney General is not compromised by that agreement being honored. As Justice Brandéis cogently observed years ago, “In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.” Olmstead v. United States, 277 U.S. 438, 468, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting). IV. Pursuant to the foregoing, we reverse the district court’s ruling, and we remand this case for entry of a stay pending arbitration of the claims asserted in the Complaint. REVERSED AND REMANDED. . The NFIP was established by Congress in the National Flood Insurance Act of 1968, 42 U.S.C. §§ 4001-4129 (\"NFIA”). . The ad damnum clause of the Complaint seeks recovery from Bankers on each count in the sum of $1,098,378, plus costs, interest, and punitive damages (as well as a civil penalty under CounL I). Since a recovery by the Government under the FCA would entitle it to treble damages, Bankers is apparently exposed to potential liability totalling several millions of dollars. . See 42 U.S.C. § 4083(b) (\"Such arbitration shall be advisory in nature ... final only upon the approval of the [FEMA] Director.”). . The Government claims that the FAA does not apply in this case, but is instead superseded by a more specific statute —" }, { "docid": "22222838", "title": "", "text": "limit the clause to disputes concerning the contract itself.” Id. Every court that has construed the phrase “arising in connection with” in an arbitration clause has interpreted that language broadly. We likewise conclude that the language “arising in connection with” reaches every dispute between the parties having a significant relationship to the contract and all disputes having their origin or genesis in the contract. m. To require arbitration, Simula’s factual allegations need only “touch matters” covered by the contract containing the arbitration clause and all doubts are to be resolved in favor of arbitrability. See Mitsubishi Motors, 473 U.S. at 624 n. 13, 105 S.Ct. 3346 (noting that “insofar as the allegations underlying the statutory claims touch matters covered by the enumerated articles, [we] properly resolve[ ] any doubts in favor of arbitrability”); Genesco, Inc. v. Kakiuchi & Co., 815 F.2d 840, 846 (2d Cir.1987) (holding that if factual allegations touch matters covered by agreements, then claims must be arbitrated). Accordingly, we must examine the factual allegations raised to determine which of Simula’s causes of action are arbitrable. See J.J. Ryan & Sons, 863 F.2d at 319 (stating that court must determine whether factual allegations underlying claim are within scope of arbitration clause). A. Antitrust Claims Simula brought two claims under the Sherman Act, 15 U.S.C. §§ 1 and 2, alleging that: (1) the January 1995 licensing agreement unreasonably restrains trade in the development, marketing and selling of automobile side-impact neck and head protection systems; and (2) Autoliv possesses significant monopoly power in the side-impact protection system markets. Contending that its antitrust claims do not fall within the scope of the arbitration clause, Simula argues that to hold otherwise would fail to protect the public policy interests promoted by United States antitrust law. Both the Supreme Court and this court have held that antitrust claims are arbitra-ble. See Mitsubishi Motors, 473 U.S. at 632-35, 105 S.Ct. 3346; Nghiem v. NEC Elec., Inc., 25 F.3d 1437, 1441 (9th Cir.1994). In Mitsubishi Motors, the Supreme Court acknowledged the importance of antitrust remedies, with their provision for treble-damages, but concluded that the importance" }, { "docid": "392535", "title": "", "text": "case for us to conclude that the sole underlying act at issue-Tarkett's solicitation of Rollins-could result in some claims that were arbitrable and some that were not. This conclusion would result in the issue of the arbitrability of a particular claim turning on the label-\"tort\" or \"contract\"-a party chose to affix to the claim. See J.J. Ryan & Sons v. Rhone Poulenc Textile, S.A., 863 F.2d 315, 321 (4th Cir.1988) (stating that a broad arbitration clause “does not limit arbitration to the literal interpretation or performance of the contract. It embraces every dispute between parties having a significant relationship to the contract regardless of the label attached to the dispute.”). And although Kiefer appeals the district court’s decision to compel arbitration only with respect to the claim it chose to cast in tort and not the breach of contract claim, we need not view these claims in isolation when the claims arise from the very same act. “We have routinely held that a party may not avoid a contractual arbitration clause merely by ‘casting its complaint in tort.’ ” Sweet Dreams Unlimited, Inc. v. Dial-A-Mattress Int’l, Ltd., 1 F.3d 639, 643 (7th Cir.1993) (citations omitted). More compelling, however, is the fact that Kiefer’s narrow view of the arbitration provision at issue runs afoul of both the intent of the FAA and the manner in which courts should interpret and enforce arbitration agreements. The tortious interference claim in Kiefer’s amended complaint arises from the very heart of the relationship between Kiefer and Tarkett with respect to the Kansas City market. Indeed, the facts set forth in Kiefer’s complaint demonstrate that the decision to enter into the distributorship agreement for the Kansas City market appeared to be contingent upon the extension of an offer of employment from Kiefer to Rollins. The fact that the underlying contract between the parties is bound up with the employment agreement with which Tark-ett has allegedly interfered distinguishes the present case from other cases in which courts have concluded that claims of tor-tious interference were not arbitrable. See, e.g., Collins & Aikman Products Co. v. Building Sys.," }, { "docid": "22222836", "title": "", "text": "614, 631, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985) (other citations omitted)). Although we acknowledged that we were interpreting language in the arbitration agreement that was similar to that in Mediterranean Enter., we ultimately compelled arbitration under the admonition of Moses H. Cone to construe arbitration clauses expansively. See id. at 479. See also Prograph Int’l Inc. v. Barhydt, 928 F.Supp. 983, 989 (N.D.Cal.1996) (interpreting virtually identical language expansively). Other courts have also liberally construed arbitration agreements containing language identical to the parties’ arbitration clause. In J.J. Ryan & Sons, Inc. v. Rhone Poulenc Textile, S.A, 863 F.2d 315 (4th Cir.1988), the court held that an arbitration agreement providing that “[a]ll disputes arising in connection with the present contract shall be .finally settled” by arbitration was sufficiently broad in scope to include claims for unfair trade practices, libel, and defamation. See id. at 321. The Fourth Circuit reasoned that “[t]he recommended clause does not limit arbitration to the literal interpretation or performance of the contract. It embraces every dispute between the parties having a significant relationship to the contract regardless of the label attached to the dispute.” Id. Likewise, in Coors Brewing Co. v. Molson Breweries, 51 F.3d 1511, 1515 (10th Cir.1995), the Tenth Circuit held that an arbitration clause covering “any dispute arising in connection with the implementation, interpretation or enforcement” of a license agreement was sufficiently broad to cover antitrust disputes between the parties. The Tenth Circuit concluded that, among other things, the public policy in favor of arbitration compelled it to read the arbitration clause to include the antitrust disputes. See id. Finally, in Good(E) Bus. Sys., Inc. v. Raytheon Co., 614 F.Supp. 428, 429 (W.D.Wis.1985), the court held that an arbitration clause providing for arbitration of disputes “arising in connection with” the agreement was broad enough to cover all claims of misrepresentation. The court there rejected an argument that the arbitration clause should be narrowly construed, concluding that “the plain meaning of the phrase ‘arising in connection with’ suggests a broader scope than a phrase such as ‘arising out of or ‘arising under,’ which seem to" }, { "docid": "8886241", "title": "", "text": "we may not deny a party’s request to arbitrate an issue “unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). Having established our principles for review, we turn to Regency’s arguments. B. Regency first argues that the magistrate judge erred by failing to apply the proper legal standard to determine the arbitrability of Long’s claims against Regency. In American Recovery, we held that a broadly-worded arbitration clause applies to disputes that do not arise under the governing contract when a “significant relationship” exists between the asserted claims and the contract in which the arbitration clause is contained. See American Recovery, 96 F.3d at 93. The arbitration clauses contained in the 1972 and 1999 Agreements are worded in the same broad manner as the arbitration clause at issue in American Recovery. See id. (holding that an arbitration clause that provided arbitration for any dispute that “ar[ose] out of or related to” the agreement was a broad clause, “capable of expansive reach”). The 1972 Agreement states that it applies to “[a]ny and all disputes ... arising out of or in connection with this Agreement.” (J.A. at 64.) Similarly, the 1999 Agreement states that it applies to “any dispute arising out of or relating to this Agreement.” (J.A. at 81); cf. Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 398, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967) (labeling as “broad” a clause that required arbitration of “[a]ny controversy or claim arising out of or relating to this Agreement”); J.J. Ryan & Sons, Inc. v. Rhone Poulenc Textile, S.A., 863 F.2d 315, 321 (4th Cir.1988) (declaring that the scope of a clause providing for the arbitration of “[a]ll disputes arising in connection with” a contract was identical to that of a clause providing for the arbitra-bility of disputes that “may arise out of or in relation to” an agreement and construing the arbitration clause to" }, { "docid": "8886242", "title": "", "text": "for any dispute that “ar[ose] out of or related to” the agreement was a broad clause, “capable of expansive reach”). The 1972 Agreement states that it applies to “[a]ny and all disputes ... arising out of or in connection with this Agreement.” (J.A. at 64.) Similarly, the 1999 Agreement states that it applies to “any dispute arising out of or relating to this Agreement.” (J.A. at 81); cf. Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 398, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967) (labeling as “broad” a clause that required arbitration of “[a]ny controversy or claim arising out of or relating to this Agreement”); J.J. Ryan & Sons, Inc. v. Rhone Poulenc Textile, S.A., 863 F.2d 315, 321 (4th Cir.1988) (declaring that the scope of a clause providing for the arbitration of “[a]ll disputes arising in connection with” a contract was identical to that of a clause providing for the arbitra-bility of disputes that “may arise out of or in relation to” an agreement and construing the arbitration clause to “encompass a broad scope of arbitrable issues.”). Thus, the governing standard for determining the arbitrability of Long’s claim is whether Long’s claims have a significant relationship to the 1972 or 1999 Agreements. Instead of applying the significant relationship test articulated in American Recovery, the magistrate judge relied upon cases decided under the standard enunciated in Mediterranean Enterprises v. Ssangyong Corporation, 708 F.2d 1458, 1463-64 (9th Cir.1983), despite our explicit, unambiguous rejection of Mediterranean Enterprises in American Recovery when dealing with a broadly-worded arbitration clause similar to those in the 1972 and 1999 Agreements. See American Recovery, 96 F.3d at 92 (“We agree with CTI that the standard in Mediterranean Enterprises was an improper foundation for the district court’s decision.”). The magistrate judge further concluded that the 1972 and 1999 Agreements were narrow in scope, indicating that “the parties could not have possibly intended to bind themselves to arbitration of the claims raised.” (J.A. at 106). As we noted in American Recovery, however, although the intention of the parties is relevant, “the intentions of parties to" }, { "docid": "8827915", "title": "", "text": "claim, whether meritorious or not, clearly arises under collective bargaining agreement provisions unrelated to Policy 683, and therefore the 17 grievants’ claim is a matter suitable for arbitration as provided in the collective bargaining agreement. In reaching this conclusion, we look not to the arbitrator’s framing of the issue, but instead to whether the factual situation that gave rise to the complaint, as well as the rights that were allegedly abridged, are within the scope of the collective bargaining agreement’s arbitration clause as interpreted by the court. See J.J. Ryan & Sons, Inc. v. Rhone Poulenc Textile, S.A., 863 F.2d 315, 319 (4th Cir.1988) (noting that the arbitrability determination centers on “whether the factual allegations underlying the claim are within the scope of the arbitration clause,regardless of the legal label assigned to the claim”). IV Having thus concluded that the grievance in this case was arbitrable, we must still determine whether the arbitrator’s award drew its essence from the collective bargaining agreement. See Misco, 484 U.S. at 36, 108 S.Ct. 364 (noting that an arbitrator’s award must “draw[] its essence from the collective bargaining agreement” and not from “his own brand of industrial justice” (internal quotation marks omitted)). On this issue, the arbitrator continued to misconstrue the grievants’ claim as actually demanding stabilization bonuses under Policy 683, and through that misconstruction, the arbitrator exceeded the scope of his authority when he actually awarded those stabilization bonuses to the 17 grievants. Regardless of whether the arbitrator relied on the collective bargaining agreement or on Policy 683, his award failed to draw its essence from either agreement. The arbitrator recognized that Policy 683 was executed between Champion and the Union to provide severance payments and stabilization bonuses to specific employees whose employment was terminated as a result of the shutdown of No. 14 Machine. Policy 683 provides explicitly that its benefits apply only to employees “whose employment is or will be terminated as a result of the Modernization Project” and can be granted only through December 31, 1993. Thus, the arbitrator correctly concluded that “[t]he only place the Stabilization Bonus is provided" }, { "docid": "22451699", "title": "", "text": "in any way, it nonetheless claims that the district court erred in finding that “the only reasonable inference that [it could] get from [the evidence] was that the arbitration agreement was a part of the [Wood-Schwabedissen] contract.” We review factual findings that form the basis of a decision as to whether the parties have agreed to submit a dispute to arbitration for clear error. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 947-48, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). We find no error in the district court’s factual finding that the Wood-Schwabedissen contract included the “General Conditions” containing the arbitration clause. Indeed, International Paper offered nothing to counter Schwa-bedissen’s evidence in support of this finding. B. International Paper’s principal contention is that even if the WoodSchwabedissen contract contains an arbitration clause, that clause cannot be enforced against International Paper, a non-signatory to the Wood-Schwabedissen contract. Generally, “arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); see also AT & T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986). While a contract cannot bind parties to arbitrate disputes they have not agreed to arbitrate, “[i]t does not follow ... that under the [Federal Arbitration] Act an obligation to arbitrate attaches only to one who has personally signed the written arbitration provision.” Fisser v. International Bank, 282 F.2d 231, 233 (2d Cir.1960). Rather, a party can agree to submit to arbitration by means other than personally signing a contract containing an arbitration clause. Well-established common law principles dictate that in an appropriate case a nonsignatory can enforce, or be bound by, an arbitration provision within a contract executed by other parties. For example, in J.J. Ryan & Sons v. Rhone Poulenc Textile, S.A., 863 F.2d 315, 320-21 (4th Cir.1988), we explained that when allegations against “a parent company and its subsidiary are based on" }, { "docid": "8033545", "title": "", "text": "factors in the affirmative, the Court, pursuant to Article II, § 3 of the Convention refers the parties to arbitration, “unless ... the said agreement is null and void, inoperative or incapable of being performed.” This language is to be interpreted narrowly “to encompass only those situations — such as fraud, mistake, duress, and waiver — -that can be applied neutrally on an international scale.” Ledee, 684 F.2d at 187 (citation omitted). The parties have consented to arbitration. The Court finds that the arbitration agreement is legally effective. B. The Court now turns to the scope of the arbitration agreement. The strong federal policy in favor of arbitration applies “with special force in the field of international commerce.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 631, 105 S.Ct. 3346, 3356, 87 L.Ed.2d 444 (1985). The arbitration agreement provides for arbitration of “[a]ny dispute or difference between the parties in connection with this agreement.” (Cox Deck, Ex. A) This Court must decide whether all of the claims against petitioners in the Marin Action fall within the scope of the arbitration clause. In Mitsubishi, the clause at issue provided for arbitration of “[a]ll disputes, controversies, or differences which may arise between [the parties] out of or in relation to” the parties’ international agreement for the sale of vehicles. 473 U.S. at 617, 105 S.Ct. at 3349 (internal quotation marks omitted). The Supreme Court held that this arbitration clause was broad enough to require that one parties’ antitrust claims against the other be sent to arbitration. Id. at 628-29, 105 S.Ct. at 3354-55. The Court also stated that “insofar as the allegations underlying the statutory claims touch matters covered by the [agreement], the Court of Appeals properly resolved any doubts in favor of arbitrability.” Id. at 624 n. 13, 105 S.Ct. at 3352 n. 13 (citation omitted). In J.J. Ryan & Sons, Inc. v. Rhone-Poulenc Textile, S.A., 863 F.2d 315 (4th Cir. 1988), the Fourth Circuit examined language very similar to that at issue here. There, the arbitration clause provided for arbitration of “[a]ll disputes arising in connection with the" }, { "docid": "8033546", "title": "", "text": "fall within the scope of the arbitration clause. In Mitsubishi, the clause at issue provided for arbitration of “[a]ll disputes, controversies, or differences which may arise between [the parties] out of or in relation to” the parties’ international agreement for the sale of vehicles. 473 U.S. at 617, 105 S.Ct. at 3349 (internal quotation marks omitted). The Supreme Court held that this arbitration clause was broad enough to require that one parties’ antitrust claims against the other be sent to arbitration. Id. at 628-29, 105 S.Ct. at 3354-55. The Court also stated that “insofar as the allegations underlying the statutory claims touch matters covered by the [agreement], the Court of Appeals properly resolved any doubts in favor of arbitrability.” Id. at 624 n. 13, 105 S.Ct. at 3352 n. 13 (citation omitted). In J.J. Ryan & Sons, Inc. v. Rhone-Poulenc Textile, S.A., 863 F.2d 315 (4th Cir. 1988), the Fourth Circuit examined language very similar to that at issue here. There, the arbitration clause provided for arbitration of “[a]ll disputes arising in connection with the present contract.” Id. at 321. The court found that this arbitration clause in the parties’ product distribution agreement was broad enough to cover allegations of conspiracy to destroy one party’s business. The court noted that the arbitration clause language conformed to that recommended by the International Chamber of Commerce, and that it must be construed to encompass a broad scope of arbitrable issues. The recommended clause does not limit arbitration to the literal interpretation or performance of the contract. It embraces every dispute between the parties having a significant relationship to the contract regardless of the label attached to the dispute. Id. Keeping in mind the broad construction of arbitration clauses in international agreements, the Court now decides whether all of Barhydt’s claims fall within the scope of the arbitration clause. Barhydt’s first three claims — for breach of written contract, bad faith breach of contract, and intentional infliction of emotional distress — all stem from Barhydt’s alleged wrongful termination, and are clearly in connection with the employment agreement. The Court finds that these claims" }, { "docid": "23501683", "title": "", "text": "the work day, I will be deemed to have quit unless and until I request and receive a work assignment at a later date. I agree that any disputes arising out of my employment, including any claims of discrimination, harassment or wrongful termination that I believe I have against Labor Ready and all other employment related issues (excluding only claims arising under the National Labor Relations act [sic] or otherwise within the jurisdiction of the National Labor Relations Board) will be resolved by arbitration as my sole remedy. The arbitration shall be conducted by the American Arbitration Association under its Commercial Arbitration Rules and the decision of the arbitrator shall be final and binding. I understand that Labor Ready also agrees to arbitrate in the same manner any claims which the company believes it has against me. I HAVE READ AND AGREE TO THE ABOVE STATEMENTS. Relying on the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16, Labor Ready argues that the arbitration agreement was valid, covered Adkins’ claims, and should be enforced. The district court agreed and ordered the parties to submit Adkins’ claims to arbitration in accordance with the terms of the arbitration agreement. The court then dismissed the action on the ground that all of the issues presented in the suit were arbitrable. See Choice Hotels Int’l v. BSR Tropicana Resort, 252 F.3d 707, 709-10 (4th Cir.2001). Adkins appeals. II. The FAA reflects “a liberal federal policy favoring arbitration agreements.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). Underlying this policy is Congress’s view that arbitration constitutes a more efficient dispute resolution process than litigation. Hightower v. GMRI, Inc., 272 F.3d 239, 241 (4th Cir.2001). Accordingly, “due regard must be given to the federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself resolved in favor of arbitration.” Volt Info. Sciences, Inc. v. Bd. of Tr. of Leland Stanford Jr. Univ., 489 U.S. 468, 475-76, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989). The FAA requires a court to stay “any" }, { "docid": "8827914", "title": "", "text": "elimination of jobs.” Although the griev-ants — who completed the grievance form without the assistance of counsel — did not invoke these specific articles of the collective bargaining agreement, they did use the term “Job Bidding” to specify the contractual rights they claim were abridged by Champion. In their own words, the employees identified their claimed harm as a loss of the “right to explore alternative avenues of employment within the mill.” In essence, the grievants claimed that in reliance on Champion’s statements that their jobs were not in jeopardy in the across-the-board workforce reduction, “general utility” crew members refrained from using their often considerable seniority to bid out to other jobs at the Canton Mill. Had they been advised otherwise, the grievants alleged, they would have exercised their bidding rights under the collective bargaining agreement and would consequently have enjoyed greater seniority, wages, or promotion potential. They allege that by failing to disclose timely the necessity of eliminating the “general utility” classification, Champion caused the grievants involuntarily to waive their job bidding rights. This claim, whether meritorious or not, clearly arises under collective bargaining agreement provisions unrelated to Policy 683, and therefore the 17 grievants’ claim is a matter suitable for arbitration as provided in the collective bargaining agreement. In reaching this conclusion, we look not to the arbitrator’s framing of the issue, but instead to whether the factual situation that gave rise to the complaint, as well as the rights that were allegedly abridged, are within the scope of the collective bargaining agreement’s arbitration clause as interpreted by the court. See J.J. Ryan & Sons, Inc. v. Rhone Poulenc Textile, S.A., 863 F.2d 315, 319 (4th Cir.1988) (noting that the arbitrability determination centers on “whether the factual allegations underlying the claim are within the scope of the arbitration clause,regardless of the legal label assigned to the claim”). IV Having thus concluded that the grievance in this case was arbitrable, we must still determine whether the arbitrator’s award drew its essence from the collective bargaining agreement. See Misco, 484 U.S. at 36, 108 S.Ct. 364 (noting that an arbitrator’s" }, { "docid": "22301290", "title": "", "text": "the arbitration clause in the consulting agreement to arbitrate any dispute that “arfóse] out of or related to ” the consulting agreement. (J.A. at 132.) Both the Supreme Court and this court have characterized similar formulations to be broad arbitration clauses capable of an expansive reach. See Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 398, 87 S.Ct. 1801, 1803, 18 L.Ed.2d 1270 (1967) (labelling as “broad” a clause that required arbitration of “[a]ny controversy or claim arising out of or relating to this Agreement”); J.J. Ryan & Sons v. Rhone Poulenc Textile, S.A., 863 F.2d 315, 321 (4th Cir.1988) (after declaring that the scope of a clause providing for the arbitration of “[a]ll disputes arising in connection with” a contract was identical to that of a clause providing for the arbitrability of disputes that “may arise out of or in relation to” an agreement, construing the arbitration clause “to encompass a broad scope of arbi-trable issues” (alteration in original)). In J.J. Ryan & Sons, we distinguished narrow arbitration clauses that required only the arbitration of claims arising under the contract and we explained that the sweeping language of a similarly broad arbitration clause “d[id] not limit arbitration to the literal interpretation or performance of the contract [, but] embrace[d] every dispute between the parties having a significant relationship to the contract regardless of the label attached to the dispute.” Id. (emphasis added). Because the broad arbitration clause negotiated by ARC and CTI rendered arbitrable all disputes having a significant relationship to the consulting agreement regardless of whether those claims implicated the terms of the consulting agreement, the district court erred in concluding that ARC’s claims did not fall within the scope of the arbitration agreement because they did not turn upon the interpretation of the terms of the consulting agreement. Thus, the district court employed an improper legal standard in determining whether ARC’s claims against CTI were arbitrable. Consequently, we must now determine whether the arbitration clause in the consulting agreement encompasses the disputes between ARC and CTI, applying the proper legal standard by examining" } ]

[ { "docid": "15668082", "title": "", "text": "1101, 97 S.Ct. 1124, 51 L.Ed.2d 550 (holding that a trial court does not abuse its discretion by failing to conduct an individual voir dire and refusing to ask questions propounded by the defense if no specific incident of prejudicial publicity is cited). The record does not show prejudice and “[w]e refuse to [find] prejudice where none has been revealed.” Brown v. United States, 403 F.2d 489, 491 (5th Cir.1968). SUFFICIENCY OF THE EVIDENCE Gerald argues that the district judge should have granted his motion for judgment of acquittal based upon alleged insufficiency of the evidence. The theory upon which the government tried the case was that Gerald (and Menzie) sought to induce a $25,000 payment from Carter by exploiting Carter’s fear that he would lose $137,000 by a Council vote to assess a late charge. Appellant argues that the assessment money did not belong to Carter’s com pany at the time of the extortion attempt because the Council had withheld ten percent of the total pursuant to the liquidated damages provision of the contract. Therefore, argues Gerald, Carter did not have a fear of economic loss as prohibited by the statute, he merely had a hope of an unlawful gain. This is an ingenious but meritless argument. The withheld money belonged to Carter’s company even though it was not in his actual possession and even though the Council had the power to assess the penalty. In the instant case the decisive question under 18 U.S.C. § 1951 (the Hobbs Act) is whether Gerald intended to cause Carter to pay the $25,000 by exploiting Carter’s fear of economic loss. If not, then Gerald was only accepting a bribe, an offense not punishable under 18 U.S.C. § 1951. United States v. Duhon, 565 F.2d 345, 351 (5th Cir.1978), cert. denied, 435 U.S. 952, 98 S.Ct. 1580, 55 L.Ed.2d 802; United States v. Hyde, supra, 448 F.2d at 833. The fear need not have been actually caused by Gerald; the statute is satisfied if Gerald intended to exploit the fear. Id. We have discussed the standard an appellate court must apply when" } ]

[ { "docid": "11118974", "title": "", "text": "consumer, A.J. Rose, from a consumer reporting agency under false pretenses_” (Emphasis added.) MOORE, Circuit Judge, concurring in part and dissenting in part. I write separately because I view several aspects of this case differently than do my colleagues and because I dissent in part from the majority’s conclusion. I. HOBBS ACT I am troubled by Valenzeno’s Hobbs Act conviction. The evidence in this case indicates that Valenzeno engaged in a scheme to defraud his victims by convincing them that the IRS would put them in prison for tax evasion unless they paid a bribe. The government, however, chose to prosecute him for extortion, not fraud. In the end, I agree that Valenzeno “obtain[ed] ... property from another ... by wrongful use of actual ... fear,” as this court has construed this provision: the Sickles were clearly in fear of the claimed prosecution, and Valenzeno used this fear to extract money from them — and that the conviction must therefore stand. See 18 U.S.C. § 1951(b)(2) (defining extortion); United States v. Collins, 78 F.3d 1021, 1030 (6th Cir.1996); United States v. Williams, 952 F.2d 1504, 1513-14 (6th Cir.1991) (“It is enough [to sustain a conviction] if ... fear exists and the defendant intentionally exploits it.”). Cf. United States v. Culbert, 435 U.S. 371, 380, 98 S.Ct. 1112, 1117, 55 L.Ed.2d 349 (1978) (“Our examination of the statutory language and the legislative history of the Hobbs Act impels us to the conclusion that Congress intended to make criminal all conduct within the reach of the statutory language.”). I am concerned, however, that this construction of the Act gives it a far broader scope than the enacting Congress intended. I see little to distinguish Valenzeno’s scheme from one in which a dishonest auto mechanic extracts money from a customer by fraudulently telling him that without expensive repairs his car will likely fall apart on the highway. Both eases are clearly fraudulent, but are they extortionate? Cf. Culbert, 435 U.S. at 378, 98 S.Ct. at 1116 (“As Representative Hobbs noted, the words robbery and extortion ‘have been construed a thousand times by the" }, { "docid": "23091027", "title": "", "text": "by wrongful use of actual or threatened force, violence or fear, or under color of official right.” The plaintiffs further claim that fear of economic loss has long been held to satisfy this statutory definition of “extortion.” The plaintiffs argue that Dirie’s acts clearly constitute extortion because, in each instance that DeFalco followed Dirie’s orders, DeFalco acted under a threat or implication that the plaintiffs’ project would be harmed by the political actions or inactions of Dirie or the other defendants. Under the Hobbs Act, “[t]he term ‘extortion’ means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” 18 U.S.C. § 1951(b)(2). Extortion through threats of economic loss falls within the Hobbs Act’s prohibitions, see United States v. Robilotto, 828 F.2d 940, 944-45 (2d Cir.1987), cert. denied, 484 U.S. 1011, 108 S.Ct. 711, 98 L.Ed.2d 662 (1988). Extortion may therefore be established on a theory that activities amounted to extortion by wrongful use of fear of economic loss. See, e.g., United States v. Capo, 817 F.2d 947, 951 (2d Cir.1987) (en banc); United States v. Rastelli, 551 F.2d 902, 904 (2d Cir.), cert. denied, 434 U.S. 831, 98 S.Ct. 115, 54 L.Ed.2d 91 (1977). In this Circuit, “[t]he cases interpreting the Hobbs Act have repeatedly stressed that the element of ‘fear’ required by the Act can be satisfied by putting the victim in fear of economic loss.” Capo, 817 F.2d at 951 (quoting United States v. Brecht, 540 F.2d 45, 52 (2d Cir.1976), cert. denied, 429 U.S. 1123, 97 S.Ct. 1160, 51 L.Ed.2d 573 (1977)) (citations omitted). The absence or presence of fear of economic loss “must be considered from the perspective of the victim, not the extortionist; the proof need establish that the victim reasonably believed: first, that the defendant had the power to harm the victim, and second, that the defendant would exploit that power to the victim’s detriment.” Capo, 817 F.2d at 951 (citing Rastelli, 551 F.2d at 905). This Circuit’s case law on extortion by wrongful use of" }, { "docid": "3593356", "title": "", "text": "the use of the word “wrongful” in the statute would be redundant. Enmons does not constitute authority that the wrongful use of fear requires a threat. Case law amply refutes Lisinski’s arguments that the wrongful use of fear requires a threat. Exploitation of, or preying upon, the victim’s fear constitutes wrongful use of fear and satisfies the statute. In United States v. Crowley, 504 F.2d 992 (7th Cir.1974), the extortion victims were the owners of bowling lanes who paid off the defendant, a police officer, to protect their business. There, as here, the policeman was not responsible for the conditions which generated the victim’s fear. But the policeman exploited that fear, and was convicted under the Hobbs Act: It is important to note that it is unnecessary for the government to prove that defendant actually created the fear in the minds of his victims. Rather, as the Court in Callahan v. United States, 223 F.2d 171, 174-176 (8th Cir.1955), cert. denied, 350 U.S. 862 [76 S.Ct. 102, 100 L.Ed. 764] ... held, the exploitation of the victim’s reasonable fear constitutes extortion regardless of whether or not the defendant was responsible for creating that fear and despite the absence of any direct threats. (emphasis supplied) 504 F.2d at 996; See also United States v. Gerald, 624 F.2d 1291, 1299 (5th Cir.1980) (“In the instant case, the decisive question under 18 U.S.C. § 1951 (the Hobbs Act) is whether Gerald [the defendant] intended to cause Carter [the victim] to pay the $25,000 by exploiting Carter’s fear of economic loss.... The fear need not have been actually caused by Gerald; the statute is satisfied if Gerald intended to exploit that fear.”) The Fifth Circuit noted in United States v. Sander, 615 F.2d 215, 218 (5th Cir.1980): Appellant Sander argues that he never threatened Knapp, and consequently that the element of fear, a required element of the Hobbs Act, was not present. Fear of economic loss is covered by the Hobbs Act. The case law is also clear that the government did not have to show either that the fear was a direct consequence" }, { "docid": "17516695", "title": "", "text": "depend on the felony. There also may be other cases of bank robbery where USSG § 5K2.13 might apply. Conceivably, a defendant could commit a bank robbery by extortion under the Hobbs Act (18 U.S.C. § 1951(b)(2)) involving neither intimidation, actual violence, nor the threat of violence. Extortion by an official acting under color of right could be a “non-violent offense.” See, e.g., United States v. Adair, 951 F.2d 316, 318 (11th Cir.1992) (“In a Hobbs Act prosecution of a public official, the government need not prove actual or threatened force, violence or duress because ‘the coercive element is supplied by the existence of the public office itself ”) (citing United States v. Williams, 621 F.2d 123, 124 (5th Cir.1980), cert. denied, 450 U.S. 919, 101 S.Ct. 1366, 67 L.Ed.2d 346 (1981)); United States v. Billups, 692 F.2d 320, 330 (4th Cir.1982) (Fear of economic harm will sustain a Hobbs Act violation. “The fear need not be the consequence of a direct or implicit threat by the defendant, and the government’s burden of proof is satisfied if it shows that the victim feared economic harm and that the circumstances surrounding the alleged extortionate conduct rendered that fear reasonable”) (citations omitted), cert. denied, 464 U.S. 820, 104 S.Ct. 84, 78 L.Ed.2d 93 (1983); United States v. Cerilli, 603 F.2d 415, 425 (3d Cir.1979) (“where extortion under color of official right is charged, one need not prove that the payment was obtained by force, fear or duress”), cert. denied, 444 U.S. 1043, 100 S.Ct. 728, 62 L.Ed.2d 728 (1980). We believe that departures under USSG § 5K2.13 exclude conduct that involves actual force, threat of force, or intimidation, the latter two measured under a reasonable person standard. Therefore, “nonviolent offenses” under USSG § 5K2.13 are those which do not involve a reasonable perception that force against persons may be used in committing the offense. Although conviction and sentencing are separate, sentencing has always been tied to the crime of conviction at least in the sense that they must be congruent. If the elements of the crime require a finding of violent conduct," }, { "docid": "23265858", "title": "", "text": "or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both. . 18 U.S.C. § 1343 provides: Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both. . Although the two intents are separate, they often functionally collapse into a single intent. United States v. Chagra, 807 F.2d 398, 401 (5th Cir.1986). Thus, oftentimes, it is only necessary for the government to prove the level of intent required for proving the underlying substantive offense. United States v. Feola, 420 U.S. 671, 686, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975); United States v. Dadi, 235 F.3d 945, 950 (5th Cir.2000). . See also United States v. Ramiscal, 99 F.3d 1148 (9th Cir. Oct. 18, 1996) (unpublished) (rejecting argument that proof of conspiracy always requires proof of knowledge of illegality of conduct); United States v. Jo, 99 F.3d 1147 (9th Cir. Oct. 18, 1996) (unpublished) (same); United States v. Sclamo, 578 F.2d 888, 891 (1st Cir.1978) (rejecting similar argument and stating, \"[t]he underlying substantive statute does not require a showing of specific Mens rea; the conspiracy count requires no greater degree of scienter than the substantive count”). . The Defendants-Appellants also argue that the note gave the jury the impression that the maxim \"ignorance of the law is no excuse” was officially a jury instruction. Whether or not it was proper for the district court to implicitly adopt this statement, the note accurately stated that this case did not fall within the narrow exception to the traditional rule that \"ignorance of the law is no excuse,” as laid out by the Supreme Court." }, { "docid": "11118984", "title": "", "text": "suffer economic harm or be the victim of fraud. Cf. 15 U.S.C. § 1681(a)(4) (congressional finding that “[t]here is a need to insure that consumer reporting agencies exercise their grave responsibilities with ... a respect for the consumer’s right to privacy.”); Trans Union Corp. v. Federal Trade Comm’n, 81 F.3d 228, 284 (D.C.Cir.1996) (“[A] major purpose of the Act is the privacy of a consumer’s credit-related data.”). I would uphold the conviction under Count Three, and I respectfully dissent from the majority’s contrary conclusion. . The government did not indict Valenzeno under the \"color of official right” prong of the Hobbs Act, which would also not apply to this hypothetical mechanic. See Joint Appendix (J.A.) at 14 (Indictment). Under that prong, which essentially codifies common-law extortion, the public official’s position of power provides the necessary coercive element and no showing of fear is necessary. See Evans v. United States, 504 U.S. 255, 265-66, 112 S.Ct. 1881, 1887-88, 119 L.Ed.2d 57 (1992). The \"force or fear” prong, on the other hand, is more akin to blackmail than to common-law extortion. See Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 8.12 (1986). Cf. Evans, 504 U.S. at 267 n. 18, 112 S.Ct. at 1889 n. 18 (discussing distinction between two prongs of Hobbs Act); James Lind-gren, The Elusive Distinction Between Bribery and Extortion: From the Common Law to the Hobbs Act, 35 UCLA L. Rev. 815 (1988) (cited passim in Evans). At least one court has ignored the distinction between the two prongs and held that bribery and extortion are not mutually exclusive under either prong. See United States v. Lisinski, 728 F.2d 887, 891-92 (7th Cir.) (relying on \"color of official right” cases to support conviction under fear prong), cert. denied, 469 U.S. 832, 105 S.Ct. 122, 83 L.Ed.2d 64 (1984). Our circuit, however, has long recognized that bribery and extortion merge only where the extortion is by color of official right, and that solicitation of a bribe will often not constitute extortion by the wrongful use of fear. See Collins, 78 F.3d at 1030; United States" }, { "docid": "23359758", "title": "", "text": "656 (2d Cir.1982) (holding that because conspiracy to sell unregistered securities to the public employing fraudulent means and the parallel substantive offense had different elements, district court did not err by refusing to charge that acquittal on conspiracy count required acquittal on substantive counts). Second, Carnes’ contention that we must reverse because it is impossible to determine from the jury’s verdict which contractors Carnes agreed to extort rests on an erroneous reading of Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999) and United States v. Garcia, 907 F.2d 380 (2d Cir.1990). In Richardson, the Supreme Court found that each of the violations constituting a “continuing series of violations” necessary for conviction of a continuing criminal enterprise based on drug offenses was an element of the prohibited crime, id. at 818-20, 119 S.Ct. 1707, and therefore held that the jury must unanimously agree on each of the predicate violations, id. at 824, 119 S.Ct. 1707. Because the identity of the targets of a Hobbs Act conspiracy is not an element of that conspiracy, see 18 U.S.C. §§ 371, 1951; cf. United States v. Mucciante, 21 F.3d 1228, 1234-35 (2d Cir.1994) (holding that identity of victim is not an essential element of 18 U.S.C. § 479, which forbids knowingly passing fraudulent government bonds), Richardson is in-apposite. Carnes’ reliance on Garcia also is misplaced. The Hobbs Act indicates that extortion can be accomplished through the “wrongful use of actual or threatened force, violence, or fear, or under color of official right.” 18 U.S.C. § 1951(b)(2). In Garcia, the government proceeded on two theories: that defendants attempted to create fear in their victim and that they extorted money under color of official right. At trial, defendants argued that there was insufficient proof that corporate officials feared an economic loss from the defendants and asked that this theory of guilt be withdrawn from the jury. Garcia, 907 F.2d at 381. We agreed with the defendants that there was no proof the victims feared economic loss, found that defendants preserved their right to appeal by their motion to withhold the" }, { "docid": "22221064", "title": "", "text": "not because of mistake or accident. The word “willfully” means that the act was committed voluntarily and purposely with the specific intent to do something the law forbids; that is to say, with bad purpose either to disobey or to disregard the law. These instructions will apply to these terms throughout the remainder of these instructions. Thereafter, in enumerating the elements of Hobbs Act offenses, the court twice stated that the government had to prove that “defendant willfully and knowingly obtained property from the person.” No matter what type of extortion is alleged, specific intent is part and parcel of a Hobbs Act conviction. See, e.g., Aguon, 851 F.2d at 1168 (extortion under color of official right); United States v. Haimowitz, 725 F.2d 1561, 1572 (11th Cir.) (extortion through fear of economic loss), cert. denied, 469 U.S. 1072, 105 S.Ct. 563, 83 L.Ed.2d 504 (1984); see also United States v. Sturm, 870 F.2d 769, 777 (1st Cir.1989). In our opinion, the definitions employed by the court below adequately conveyed the essence of the mens rea requirement for Hobbs Act extortion. Compare, e.g., Aguon, 851 F.2d at 1168; United States v. Kattar, 840 F.2d 118, 124 n. 4 (1st Cir.1988); United States v. Dozier, 672 F.2d 531, 542 (5th Cir.), cert. denied, 459 U.S. 943, 103 S.Ct. 256, 74 L.Ed.2d 200 (1982); United States v. Scacchetti, 668 F.2d 643, 649 (2d Cir.), cert. denied, 457 U.S. 1132, 102 S.Ct. 2957, 73 L.Ed.2d 1349 (1982); cf. Sturm, 870 F.2d at 775 (rejecting “purely objective” definitions which contained “no reference to the defendant’s state of mind”). Furthermore, the charge as a whole made it plain that the definitions applied across the board. There was no error. Appellants also denigrate the instruction on “under color” extortion from another standpoint. The charge suggested, appellants say, that a conviction could be based on a defendant’s knowledge that the victim was motivated by the public office held rather than by some misuse of that office. But, this hairsplitting incorrectly shifts the mens rea focus to fine— and wholly needless—distinctions concerning what a defendant might think that a" }, { "docid": "16754410", "title": "", "text": "respect,” we find that the district court properly rejected the additional charge. See Dove, 916 F.2d at 45 (quoting Ouimette, 798 F.2d at 49). First, the language of the Hobbs Act in no way requires the instruction which the appellants sought from the trial court. Title 18, Section 1951(b)(2) defines extortion as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” The statute does not limit the definition of extortion to those circumstances in which property is obtained through the wrongful use of fear created by implicit or explicit threats, but instead leaves open the cause of the fear. Further, the law within this Circuit is clear that the wrongful use of fear need not be a consequence of an implicit or explicit threat as the appellants contend. In United States v. Capo, 817 F.2d 947, 951 (2d Cir.1987) (en banc), there was no dispute that the following instruction was correct: “[i]t is not necessary that the Government prove that the fear of economic loss was the consequence of a direct threat made by the defendant.” See id. at 955 (“[W]e all agree that the instructions given to the jury were correct.”) (Kearse, J., dissenting). The Courts of Appeals in other Circuits share this view. See, e.g., United States v. Williams, 952 F.2d 1504, 1513 (6th Cir.1991); United States v. Nedza, 880 F.2d 896, 902 (7th Cir.), cert. denied, 493 U.S. 938, 110 S.Ct. 334, 107 L.Ed.2d 323 (1989); United States v. Lisinski, 728 F.2d 887, 890-91 (7th Cir.), cert. denied, 469 U.S. 832, 105 S.Ct. 122, 83 L.Ed.2d 64 (1984). Therefore, the district court correctly refused to give the additional instruction. Moreover, appellants’ argument that Ivankov could have been convicted solely on the basis of his reputation as a prominent Russian gangster is not an accurate reading of the charge as a whole. The charge made it clear that, to be found guilty of attempted extortion, a defendant must knowingly and willfully create or instill fear, or use or exploit existing" }, { "docid": "3910491", "title": "", "text": "the indictment must set out all of the elements of the charge offense and must give notice to the defendant of- the charges he faces; second, 'the indictment must be sufficiently specific to enable the defendant to plead double jeopardy in a subsequent proceeding, if charged with the same crime based on the same facts.” United States v. Martinez, 981 F.2d 867, 872 (6th Cir.1992) (citing Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962)). The elements of a section 371 conspiracy to defraud are: • (1) an agreement to accomplish an illegal objective against the United States; (2) one or more overt acts in furtherance of the illegal purpose; and (3) the intent to commit the substantive offense, i.e., to defraud the United States.. See Khalife, 106 F.3d at 1303 (quoting Jackson, 33 F.3d at 872). Count One describes the objective of the conspiracy, the means and methods in furtherance of that objective, and the overt acts taken to- achieve it. As stated above, the United States need not prove the illegal objective, the intent,- or the violation of the substantive offense. Count One sets forth all of the elements of the offense, gives notice to the defendant of the charges, and is sufficiently specific to enable defendants to plead double jeopardy in a subsequent proceeding if charged with the same crime based on the same facts. See id.; Martinez, 981 F.2d at 872. Thus, Count One sufficiently alleges a violation of section 371. 2. Count Two Count Two charges defendants, with conspiring to obstruct, delay, and affect commerce in violation of the Hobbs Act, 18 U.S.C. § 1951. In essence, this is an extortion claim: the United States claims that defendants obtained employment for Campbell and Fante by inducing General Motors through the wrongful use of fear.of economic harm, i.e.;. a prolonged strike. The Act defines extortion in part as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear.” 18 U.S.C. § 1951(b)(2). Count Two alleges that defendants obtained the" }, { "docid": "3593352", "title": "", "text": "and IV and brings this appeal. I Whether the evidence is insufficient to sustain the extortion conviction? a). Necessity of a Threat? Lisinski contends that an indispensable element of extortion by wrongful use of fear of economic harm is a threat, whether direct or indirect. Lisinski argues that the evidence at trial showed no threat and that Patras’ fear of economic harm was self-generated. The government argues, on the other hand, that no threat is necessary. The government suggests that extortion by wrongful use of fear of economic harm is established by showing that the defendant preyed upon or exploited the victim’s fear of economic harm. We agree. Our analysis commences with the statute. Mills v. United States, 713 F.2d 1249, 1251 (7th Cir.1983). The Hobbs Act provides: (a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both. (b) As used in this section— (2) The term “extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear or under color of official right, (emphasis supplied) 18 U.S.C. § 1951 (1976). “The Hobbs Act ... is a broadly drawn statute. The cases construing the Act have repeatedly emphasized that the Congress, in passing the statute wanted to use all of the constitutional power it had to punish interference with interstate commerce by extortion, robbery or physical violence.” United States v. Sander, 615 F.2d 215, 218 (5th Cir.), cert. denied, 449 U.S. 835, 101 S.Ct. 108, 66 L.Ed.2d 41 (1980), citing Stirone v. United States, 361 U.S. 212, 215, 80 S.Ct. 270, 272, 4 L.Ed.2d 252 (1960). This Circuit and others have long recognized that the term “fear” in the Hobbs Act includes fear" }, { "docid": "23698807", "title": "", "text": "guilt for conspiracy to extort, extortion, and attempted extortion was not established beyond a reasonable doubt (Counts Two, Four, and Five). Under the Hobbs Act, it is a crime to obstruct or affect interstate commerce by obtaining the property of another through extortionate means. 18 U.S.C.A. § 1951. “Extortion” is defined as “obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” 18 U.S.C.A. § 1951(b)(2). The district court found that extortion was accomplished by both statuto ry means — under color of official right and by fear of financial and economic loss and injury to the business of the restaurant. Haimowitz contends that any extortion conviction resting on fear of economic loss must fail, because Haimowitz did not instill fear and because Abbott was cooperating with the federal authorities, and therefore had no expectation of receiving a liquor license. The fear experienced by the victim does not have to be the consequence of a direct threat. Rather, extortion is found if the circumstances render the victim’s fear reasonable. United States v. Kopituk, 690 F.2d 1289, 1328 (11th Cir. 1982), cert. denied, — U.S. —, 103 S.Ct. 3542, 77 L.Ed.2d 1391 (1983); United States v. Sander, 615 F.2d 215, 218 (5th Cir.1980); United States v. Quinn, 514 F.2d 1250, 1266-67 (5th Cir.1975), cert. denied, 424 U.S. 955, 96 S.Ct. 1430, 47 L.Ed.2d 361 (1976). Fear of economic loss is a type of fear within the purview of § 1951. United States v. Kopituk, 690 F.2d at 1328; United States v. Sander, 615 F.2d at 218; United States v. Quinn, 514 F.2d at 1267. The defendant does not need to have caused the fear; the statute is satisfied if he or she intended to exploit the fear. United States v. Gerald, 624 F.2d 1291, 1299 (5th Cir.1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1369, 67 L.Ed.2d 348 (1981). In this case, the restaurant needed a state liquor license to operate as a supper club. The license was vital to the economic well-being of the" }, { "docid": "3593357", "title": "", "text": "the victim’s reasonable fear constitutes extortion regardless of whether or not the defendant was responsible for creating that fear and despite the absence of any direct threats. (emphasis supplied) 504 F.2d at 996; See also United States v. Gerald, 624 F.2d 1291, 1299 (5th Cir.1980) (“In the instant case, the decisive question under 18 U.S.C. § 1951 (the Hobbs Act) is whether Gerald [the defendant] intended to cause Carter [the victim] to pay the $25,000 by exploiting Carter’s fear of economic loss.... The fear need not have been actually caused by Gerald; the statute is satisfied if Gerald intended to exploit that fear.”) The Fifth Circuit noted in United States v. Sander, 615 F.2d 215, 218 (5th Cir.1980): Appellant Sander argues that he never threatened Knapp, and consequently that the element of fear, a required element of the Hobbs Act, was not present. Fear of economic loss is covered by the Hobbs Act. The case law is also clear that the government did not have to show either that the fear was a direct consequence of the threat of economic loss or that Knapp personally feared Sander. United States v. Quinn, 514 F.2d 1250, 1266-67 (5th Cir.1975), cert. denied, 424 U.S. 955, 96 S.Ct. 1430, 47 L.Ed.2d 361 (1976). Subtle extortions are covered under the Hobbs Act, and the government satisfied its burden of proof if it showed circumstances surrounding the alleged extortionate conduct that rendered the victim’s fear of threatened loss reasonable. See also United States v. Duhon, 565 F.2d 345, 351 (5th Cir.), cert. denied, 435 U.S. 952, 98 S.Ct. 1580, 55 L.Ed.2d 802 (1978) (“In the present case, there is sufficient evidence to demonstrate the existence of a reasonable fear on the part of the victims and the requisite intent to exploit that fear.”) Here, looking at the evidence in a light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), more than adequate evidence was adduced to sustain Lisinski’s extortion conviction. Patras reasonably feared the loss of his liquor license because loss of the" }, { "docid": "23502455", "title": "", "text": "(2) The term “extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right. . Moreover, Rogers conceded that an overt act is not required to establish a conspiracy to violate the Hobbs Act. Appellant's Brief, at 18. At least one case in this circuit has suggested that proof of an overt act is required to establish a violation of 18 U.S.C. § 1951. United States v. Benton, 852 F.2d 1456, 1465 (6th Cir.) (stating the elements of a Hobbs Act conspiracy in the context of a double jeopardy claim), cert. denied, 488 U.S. 993, 109 S.Ct. 555, 102 L.Ed.2d 582 (1988). However, another Sixth Circuit case has held that although the substantive crime of Hobbs Act extortion required proof that money was extorted, no such proof was required to establish conspiracy under § 1951. United States v. Shelton, 573 F.2d 917, 919 (6th Cir.), cert. denied, 439 U.S. 827, 99 S.Ct. 99, 58 L.Ed.2d 120 (1978). See also United States v. DiCarlantonio, 870 F.2d 1058, 1061 (6th Cir.) (\"[a]s with other conspiracies, a conviction of conspiring to obstruct commerce in violation of the Hobbs Act may be founded upon proof of an agreement to engage in conduct which would violate the statute”), cert. denied, 493 U.S. 933, 110 S.Ct. 323, 107 L.Ed.2d 313 (1989), and cert. denied, 493 U.S. 933, 110 S.Ct. 323, 107 L.Ed.2d 313 (1989). We recognize that there exists a split among the circuits regarding this issue. Compare United States v. Stephens, 964 F.2d 424, 427 (5th Cir. 1992) (holding that an overt act is required) with United States v. Tormos-Vega, 959 F.2d 1103, 1115 (1st Cir.) (stating that no overt act is required), cert. denied, 506 U.S. 866, 113 S.Ct. 191, 121 L.Ed.2d 135 (1992) and United States v. Maldonado-Rivera, 922 F.2d 934, 983 (2d Cir. 1990) (same), cert. denied, 501 U.S. 1211, 111 S.Ct. 2811, 115 L.Ed.2d 984 (1991), and cert. denied, 501 U.S. 1233, 111 S.Ct. 2858 (1991). Because the government did prove several overt" }, { "docid": "15612082", "title": "", "text": "violence, or fear, or under color of official right. 18 U.S.C. § 1951(b)(2). The government successfully prosecuted these defendants under the theory that their activities amounted to extortion by wrongful use of fear — specifically, fear of economic loss. See, e.g., United States v. Rastelli, 551 F.2d 902, 904 (2d Cir.), cert. denied, 434 U.S. 831, 98 S.Ct. 115, 54 L.Ed.2d 91 (1977). In response, defendants do not contend that a job-selling scheme could never constitute extortion under the Hobbs Act. Rather, they protest that the money they received was not extorted from their “victims” because the “victims” were not induced to pay by fear of economic loss, but, instead, by hope — the hope of obtaining employment. In substance, defendants claim that the government cannot demonstrate wrongful use of fear of economic loss absent proof either that defendants threatened to impair the “victims’ ” prospects for employment at Kodak if they did not pay, or that the “victims” otherwise reasonably believed their chances for employment would be impaired for nonpayment. Thus, defendants argue that, unless we are willing to accept a melding of federal extortion and state-law commercial bribery, we must recognize the insufficient evidence of fear of economic loss on these facts. I. Fear of economic loss. “The cases interpreting the Hobbs Act have repeatedly stressed that the element of ‘fear’ required by the Act can be satisfied by putting the victim in fear of economic loss.” United States v. Brecht, 540 F.2d 45, 52 (2d Cir.1976), cert. denied, 429 U.S. 1123, 97 S.Ct. 1160, 51 L.Ed.2d 573 (1977) (citations omitted). Instructing the jury in this case, the district judge charged: It is not necessary that the Government prove that the fear of economic loss was the consequence of a direct threat made by the defendant. Nor is it necessary for the Government to prove that the defendant actually created the fear in the minds of his victims, or was responsible for creating that fear. However, it must be proved that the defendant intended to exploit the fear of the alleged victim. The fear of economic loss must" }, { "docid": "22221066", "title": "", "text": "payor might be thinking. In extortion, “[t]he emphasis is on the defendant’s own motives rather than on his perception of a potential contributor’s motive.” Dozier, 672 F.2d at 542. Telepathy aside, the crux of the matter is whether the official accepts the gratuity knowing that payment is being tendered because of his public office. In order to convict in an “under color” case, it is unnecessary to draw distinctions between payors who are galvanized by defendant’s public office and those who are galvanized by some overt misuse of that office. See, e.g., Spitler, 800 F.2d at 1274-75; United States v. Blackwood, 768 F.2d 131, 137 (7th Cir.), cert. denied, 474 U.S. 1020, 106 S.Ct. 569, 88 L.Ed.2d 554 (1985); United States v. Butler, 618 F.2d 411, 418 (6th Cir.), cert. denied, 447 U.S. 927, 100 S.Ct. 3024, 65 L.Ed.2d 1121 (1980); cf. United States v. McKenna, 889 F.2d 1168, 1174 (1st Cir.1989) (“under color” language includes threats inherent in public office). In a last gasp, as if the third time were the charm, appellants press a final mens rea objection. On the topic of extortion by fear of economic harm, the district court charged that “the exploitation of the payor’s reasonable fear constituted extortion whether or not the defendant was responsible for creating that fear and despite the absence of any direct threats.” Appellants speculate that the remark could have allowed the jury to convict them without proof that they were aware of, or intended to take advantage of, the victim’s fear. But, this bit of unmitigated conjecture improperly wrests the court’s comment from its contextual moorings. See McKenna, 889 F.2d at 1173 (reviewing instructions “in light of the whole charge and the whole trial, not singularly”). The disputed statement was made in a section of the instructions defining (and distinguishing) various types of Hobbs Act extortion. The court’s emphasis was on the source of the fear which was being exploited, not on exploitation itself. Nothing in this preachment, or elsewhere in the charge, negated the need for the prosecution to prove intent to exploit. In addition, the court told" }, { "docid": "22221063", "title": "", "text": "The government is not required to prove that the defendant demanded or directly solicited the payment made or that he offered anything specific in return for it. The instructions continued at length, describing ways in which the government might prove inducement. Inasmuch as the court’s charge tracked the language used by those circuits which impose an inducement requirement, see, e.g., Aguon, 851 F.2d at 1166 (“ ‘inducement’ can be in the overt form of a ‘demand,’ or in a more subtle form”); O’Grady, 742 F.2d at 691 (“inducement can take many forms, some more subtle than others”); id. at 693 (prosecution must show defendant “did something” to induce payment), appellants have obtained the benefit of the rule in its most liberal permutation. Because the charge passed muster on any view of the statutory language, appellants’ rights were amply protected. B. Mens Rea. Defendants claim that the district court’s instruction on specific intent was inappropriate. Near the beginning of the charge, the judge stated: The term “knowingly” means that the act was done voluntarily and intentionally, not because of mistake or accident. The word “willfully” means that the act was committed voluntarily and purposely with the specific intent to do something the law forbids; that is to say, with bad purpose either to disobey or to disregard the law. These instructions will apply to these terms throughout the remainder of these instructions. Thereafter, in enumerating the elements of Hobbs Act offenses, the court twice stated that the government had to prove that “defendant willfully and knowingly obtained property from the person.” No matter what type of extortion is alleged, specific intent is part and parcel of a Hobbs Act conviction. See, e.g., Aguon, 851 F.2d at 1168 (extortion under color of official right); United States v. Haimowitz, 725 F.2d 1561, 1572 (11th Cir.) (extortion through fear of economic loss), cert. denied, 469 U.S. 1072, 105 S.Ct. 563, 83 L.Ed.2d 504 (1984); see also United States v. Sturm, 870 F.2d 769, 777 (1st Cir.1989). In our opinion, the definitions employed by the court below adequately conveyed the essence of the mens rea" }, { "docid": "19653610", "title": "", "text": "Cir.2007), which was issued after oral argument in our court on these consolidated appeals. Defendants requested, and we permitted, supplemental briefing on the impact of Brock on their Hobbs Act convictions. The Hobbs Act, 18 U.S.C. § 1951, makes it unlawful to “obstruct[], delay[], or affect[ ] commerce ... by robbery or extortion or attempt[] or eonspire[] to do so....” 18 U.S.C. § 1951(a). Section 1951(b)(2) defines “extortion” as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” 18 U.S.C. § 1951(b)(2). “Rather than requiring an explicit quid-pro-quo promise, the elements of extortion are ‘satisfied by something short of a formalized and thoroughly articulated contractual arrangement (i.e., merely knowing that the payment was made in return for official acts is enough).’” United States v. Hamilton, 263 F.3d 645, 653 (6th Cir.2001) (quoting United States v. Blandford, 33 F.3d 685, 696 (6th Cir.1994)). Generally, to convict a defendant of aiding and abetting extortion, the government must prove that the defendant (1) aided the inducement of a victim to part with property; (2) that he did so knowingly and willingly with extortionate means; and (3) that interstate commerce was affected. United States v. Cornier-Ortiz, 361 F.3d 29, 37 (1st Cir.2004). Under the “color of official right” theory that is alleged in the instant case, “a public official ... obtains a ‘payment to which he was not entitled, knowing that the payment was made in return for official acts.’ ” United States v. Kelley, 461 F.3d 817, 826 (6th Cir.2006) (quoting Evans v. United States, 504 U.S. 255, 268, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992)). It is not essential that a public official have final decision-making authority: “[t]he Hobbs Act reaches anyone who actually exercises official powers.” United States v. Collins, 78 F.3d 1021, 1032 (6th Cir.1996) (internal citation and quotation marks omitted). “It is well settled in this Circuit that ‘a private citizen who is not in the process of becoming a public official may be convicted of Hobbs Act extortion under the" }, { "docid": "22221102", "title": "", "text": "H.J. Inc. in no way beclouds Muskovsky, Gray-son, or the jury instructions disputed here. . In United States v. Bucci, 839 F.2d 825 (1st Cir.), cert. denied, — U.S. -, 109 S.Ct. 117, 102 L.Ed.2d 91 (1988), we stated that the government could prove extortion \"by showing that a defendant induced payment either through the use of actual or threatened force, violence, or fear, or under color of official right.\" Id. at 827; see also United States v. Rivera-Medina, 845 F.2d 12, 14 (1st Cir.) (same), cert. denied, - U.S. -, 109 S.Ct. 160, 102 L.Ed.2d 131 (1988). Neither case decided whether inducement was a necessary element of extortion “under color of official right”; the quoted language was intended only to clarify that the government need not show extortion both through fear of economic loss and under color of official right. . We briefly mention two related sniper shots. First, appellants' complaint that the district court \"confused the issue” by other statements in the charge exhibits greater imagination than logic. Although instructing separately on fear of economic loss (a practice consistent with Bucci, 839 F.2d at 827), the court did not retreat from its admonition that inducement was required on an “under color” claim. Second, the argument that the court’s instructions were infected by the same viral strain which led to reversal in O’Grady seems altogether misplaced. The district court’s instructions in O'Grady focused on inducement arising out of the naked fact of officeholding, without more. 742 F.2d at 688, 693. Here, unlike O'Grady, the inducement instruction was appropriately focused on defendants' actions while holding office. . Appellants’ argument that the court failed properly to instruct on conspiracy to commit extortion fails for much the same reasons. Although the instructions anent this specific crime did not explicitly elucidate the mens rea element, that portion of the charge was prefaced with the statement that the court’s \"earlier instruction as to conspiracy applies.\" Inasmuch as that earlier instruction dealt adequately with specific intent, no more was exigible. . To cite one resounding example, the district court, struck a question propounded by Shee-han’s" }, { "docid": "9715444", "title": "", "text": "Turning to the merits of the government’s cross-appeal, we conclude that sufficient evidence existed to support Covino’s conviction for extortion under the Hobbs Act. The Hobbs Act prohibits obstruction, delay or interference with interstate commerce by means of extortion. Extortion is defined as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” 18 U.S.C. § 1951(b)(2). In the view of the district court, unless a Hobbs Act defendant threatens to hurt his or her victim, the forthcoming payment is only commercial bribery, the essential element of which is “pay me and be assisted,” but not extortion, the essential element of which is “pay me or be precluded.” Covino, 652 F.Supp. at 667 (quoting United States v. Capo, 791 F.2d 1054, 1073 (2d Cir.1986) (Pratt, J., dissenting)). As was made clear by United States v. Capo, 817 F.2d 947 (2d Cir.1987) (in banc), the district court’s statement of the law is essentially correct. We disagree, however, with his view of the sufficiency of the evidence in the instant case. In a prosecution for extortion by the wrongful use of the fear of economic loss, the government must prove that the victim reasonably believed two things: “first, that the defendant had the power to harm the victim, and second, that the defendant would exploit that power to the victim’s detriment.” Id. at 951. A direct threat of future harm is not necessary to establish the reasonableness of the alleged victim’s fear. See United States v. Billups, 692 F.2d 320, 330-31 (4th Cir.1982) (fear need not be consequence of direct or implicit threat by defendant, but need only be reasonable under circumstances), cert. denied, 464 U.S. 820, 104 S.Ct. 84, 78 L.Ed.2d 93 (1983); United States v. Duhon, 565 F.2d 345, 352 (5th Cir.) (intent to extort may be inferred from ambiguous statements), cert. denied, 435 U.S. 952, 98 S.Ct. 1580, 58 L.Ed.2d 802 (1978). Viewed in the light most favorable to the government, the evidence of fear of economic loss was sufficient to support" } ]

[ { "docid": "23272635", "title": "", "text": "addressed the merits of Zich-ko’s petition; instead, it dismissed the petition on procedural grounds on July 16, 1998, more than a year after the sentence would have been completed had he been incarcerated for the full 10 years. Zichko was, however, incarcerated for failing to register as a sex offender as required by Idaho law, Idaho Code §§ 18-8301 — 18-8326, at the time he filed his habeas petition and at the time it was dismissed by the district court. Several times, we have held that merely being subject to a sex offender registry requirement does not satisfy the “in custody” requirement after the original rape conviction has expired. See, e.g., McNab v. Kok, 170 F.3d 1246 (9th Cir.1999); Williamson v. Gregoire, 151 F.3d 1180 (9th Cir.1998). In none of our previous cases, however, was the petitioner actually incarcerated for failing to register. In contrast, in this case of first impression, Zichko was incarcerated at all relevant times. “It is well settled that a habeas corpus petitioner meets the statutory ‘in custody requirements when, at the time he files the petition[ ] ... he is in custody pursuant to another conviction that is positively and demonstrably related to the conviction he attacks.” Carter v. Procunier, 755 F.2d 1126, 1129 (5th Cir.1985). Zichko was subject to Idaho’s registration requirement only because of his initial rape conviction. We now hold that a habeas petitioner is “in custody” for the purposes of challenging an earlier, expired rape conviction, when he is incarcerated for failing to comply with a state sex offender registration law because the earlier rape conviction “is a necessary predicate” to the failure to register charge. Brock, 31 F.3d at 890 (holding that the habeas petitioner could challenge an earlier, expired conviction while involuntarily committed for treatment as a violent sexual predator). The Supreme Court’s recent decision in Lackawanna County Dist. Atty. v. Coss, 121 S.Ct. 1567 (2001), is not to the contrary. There, the Supreme Court held that “if a prior conviction used to enhance a federal sentence is no longer open to direct or collateral attack in its own" } ]

[ { "docid": "7706463", "title": "", "text": "Daniels v. United States, 532 U.S. 374, 121 S.Ct. 1578, 149 L.Ed.2d 590 (2001), and Lackawanna County District Attorney v. Coss, 532 U.S. 394, 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001), the habeas petitioners were in physical custody pursuant to sentences enhanced, based on prior convictions. To find jurisdiction, the Coss Court construed the habeas petition, as did the Maleng Court earlier, as \" 'asserting a challenge to the [current] sentence, as enhanced by the allegedly invalid prior conviction.’ ” 532 U.S. at 401-02, 121 S.Ct. 1567 (quoting Maleng, 490 U.S. at 493, 109 S.Ct. 1923 (alterations omitted)). In so doing, it reaffirmed that because \"Coss is no longer serving the sentences imposed pursuant to his 1986 convictions ..., [he] therefore cannot bring a federal habeas petition directed solely at those convictions.” Id. at 401, 121 S.Ct. 1567 (emphasis added). Because Wilson, unlike the petitioners in the cases cited by the dissent, cannot mount a direct challenge to any conviction or sentence he is currently serving, these precedents are not “pertinent” as the dissent claims, but are singularly inapplicable. . The dissent, continuing the error it makes in interpreting Daniels and Coss, ante, 337 n. 1, disputes this statement, citing Zichko v. Idaho, 247 F.3d 1015 (9th Cir.2001). Post, at 341 n. 2. In Zichko, however, the defendant had been arrested and incarcerated for failing to register as a sex offender. See id. at 1019. The Ninth Circuit relied on that present custody, and, in so doing, reaffirmed that \"merely being subject to a sex offender registry requirement does not satisfy the 'in custody' requirement after the original rape conviction has expired.” Id. (emphasis added). . Although the dissent may be correct that Virginia has limited the application of the writ of coram nobis, see post, at 345 n. 4, the writ remains available for “an error of fact not apparent on the record, not attributable to the applicant’s negligence, and which if known by the court would have prevented rendition of the judgment.” Commonwealth v. Morris, 281 Va. 70, 78, 705 S.E.2d 503 (2011) (quoting Dobie v. Commonwealth, 198" }, { "docid": "12009330", "title": "", "text": "524 F.Supp.2d 182, 189 (E.D.N.Y. 2007) (holding that “the fact that these collateral penalties are not merely a possibility, but have actually materialized ..., does not make them any less collateral and, thus, does not change the ‘in custody’ analysis”). Bonser’s present incarceration is punishment for failing to comply with a collateral consequence of his 2006 conviction. His current custodial status “is not a continuation of the [expired] sex offense sentence ..., but rather is pursuant to an entirely separate conviction” for failing to register. Davis, 524 F.Supp.2d at 190 (citing Maleng, 490 U.S. at 491, 109 S.Ct. 1923). In other words, because Bonser’s 2006 conviction had “fully expired ... [w]hen the [2013] sentence [was] imposed, it is pursuant to [that] conviction[,] [not the 2006 conviction,] that [he] is incarcerated and is therefore ‘in custody.’” Maleng, 490 U.S. at 492-93, 109 S.Ct. 1923. Bonser thus does not satisfy the “in custody” requirement and cannot obtain review of his prior conviction. Moreover, concluding that a conviction for violating registration requirements is not a collateral, consequence “would read the ‘in custody’ requirement out of the statute” and reward law-breakers, because sex offenders who fail to register would have an additional opportunity to challenge their underlying convictions—no matter how old—while individuals who abide by registration requirements would forgo such an opportunity. Id. at 492, 109 S.Ct. 1923; see Wilson, 689 F.3d at 341 & n.2 (Wynn, J., dissenting) (describing as “untenable” the “conclusion that [a petitioner] could meet the custody requirements for filing his § 2254 petition by intentionally violating his sex offender registration requirements and causing his own arrest”); Davis, 524 F.Supp.2d at 190 (explaining that reading “in custody” broadly would mean that “any time an individual suffered some collateral penalty due to his status as a sex offender ... he could resurrect a habeas challenge to the underlying predicate conviction”). Furthermore, allowing a petitioner in custody for a later conviction to challenge an earlier, expired conviction would countenance “end run[s] around statutes of limitations and other procedural barriers that would preclude the movant from attacking the prior conviction directly.” Daniels v." }, { "docid": "5391400", "title": "", "text": "on liberty that satisfies the' “in custody” requirement for purposes of Section 2254. See Williamson, 151 F.3d at 1184 (“[T]he constraints of this [sex offender registration] law lack the discernible impediment to movement that typically satisfies the ‘in custody’ requirement.”). Therefore, the Court holds that the fact that petitioner is subject to New York and Oklahoma sex offender registration requirements as a result of his underlying conviction does not constitute being “in custody,” such that it can permit federal habeas review of the expired underlying conviction. However, in the instant petition, petitioner claims that he was not only subject to these registration requirements, but that he also has been subjected to criminal penalties for failure to comply with such requirements. The Court now turns to whether the imposition of criminal penalties for failure to register changes the analysis and thereby satisfies the “in custody” requirement for habeas review of the underlying sex abuse conviction. (2) Criminal Penalties for Failure to Register Petitioner notified the Court that he was re-incarcerated on April 21, 2007 in Oklahoma for his failure to register according to Oklahoma sex offender laws since his move from New York. He subsequently notified the Court in October 2007 of his release and the fact that he was subject to continuing probation as a result of the offense. To the extent that petitioner argues that this conviction in Oklahoma somehow resurrects his ability to challenge his underlying 1998 conviction because he is again “in custody” for habeas purposes, the Court finds that argument unpersuasive. In Maleng, the petitioner challenged his expired 1958 conviction and argued that it had been illegally used to enhance his 1978 conviction. 490 U.S. at 490-91, 109 S.Ct. 1923. As an initial matter, the Supreme Court noted that “[w]e have never held ... that a habeas petitioner may be ‘in custody’ under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed.” 490 U.S. at 491, 109 S.Ct. 1923 (emphasis in original). Citing Carafas v. La Vallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554" }, { "docid": "19653728", "title": "", "text": "information and to update this information every ninety days, Wis. Stat. § 301.45(3)(b)(lm), registrants may do so by mail. Wis. Admin. Code § DOC 332.06(2). Moreover, a registrant may update the WDOC with any changes by using a telephonic registration system. See id. § DOC 332.06(2)(a). Accordingly, the Wisconsin statute imposes minimal restrictions on a registrant’s physical liberty of movement. Our circuit’s case law, as well as ample case law from other circuits, dictates that the future threat of incarceration for registrants who fail to comply with the statute is insufficient to satisfy the custody requirement. Hanson, 591 F.2d at 407 & n. 6 (holding that the potential that nonpayment of a fíne will result in incarceration is insufficient to satisfy the custody requirement); see also Leslie, 296 F.3d at 522; Gregoire, 151 F.3d at 1184; Tinder v. Paula, 725 F.2d 801, 804 (1st Cir.1984) (collecting cases); cf. Maleng, 490 U.S. at 492, 109 S.Ct. 1923. As the First Circuit explained in Tinder, “the possibility that the court will resort to imprisonment to enforce the fine is considered too remote and speculative to warrant the invocation of federal habeas jurisdiction.” 725 F.2d at 804; cf. Maleng, 490 U.S. at 492, 109 S.Ct. 1923 (holding that a habeas petitioner does not “remain ‘in custody’ under a conviction after the sentence imposed for it has fully expired, merely because of the possibility that the prior conviction will be used to enhance the sentences imposed for any subsequent crimes of which he is convicted”). Like the statutes in Gregoire and Leslie, the Wisconsin sexual offender registration statute is considered remedial, rather than punitive, in nature. State v. Bollig, 232 Wis.2d 561, 605 N.W.2d 199, 205 (2000). In Bollig, the Supreme Court of Wisconsin held that “Wisconsin’s registration statute does not evince the intent to punish sex offenders, but rather reflects the intent to protect the public and assist law enforcement.” Id.; see also Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (holding that Alaska’s sexual offender registration statute is not punitive for purposes of the Ex Post Facto" }, { "docid": "10798279", "title": "", "text": "and engage in all legal activities without limitation and without approval by a government official. Consequently, we conclude that the Colorado sex-offender registration requirements at issue here are collateral consequences of conviction that do not impose a severe restriction on an individual’s freedom. Therefore, they are insufficient to satisfy the custody requirement of § 2254. Permitting a petitioner whose sentence has completely expired and who “suffers no present restraint from [the] conviction” to challenge the conviction at any time on federal habeas “would read the ‘in custody requirement out of the statute.” Maleng, 490 U.S. at 492, 109 S.Ct. 1923. Therefore, we join the circuits uniformly holding that the requirement to register under state sex-offender registration statutes does not satisfy § 2254’s condition that the petitioner be “in custody” at the time he files a habeas petition. See Wilson v. Flaherty, 689 F.3d 332, 335, 338-39 (4th Cir.2012) (considering Virginia and Texas sex-offender-registration statutes; petitioner moved from Virginia to Texas), cert. denied, — U.S.-, 133 S.Ct. 2853, — L.Ed.2d - (2013); Virsnieks, 521 F.3d at 720 (Wisconsin statute); Leslie v. Randle, 296 F.3d 518, 522-23 (6th Cir.2002), (Ohio statute); McNab v. Kok, 170 F.3d 1246, 1247 (9th Cir.1999) (per curiam) (Oregon statute); Henry v. Lungren, 164 F.3d 1240, 1241-42 (9th Cir.1999) (California statute); Williamson, 151 F.3d at 1184 (Washington statute). III. CONCLUSION Mr. Calhoun was not in custody when he filed his § 2254 petition. Therefore, the district court was without jurisdiction to consider the merits of the petition. The judgment of the district court is affirmed. . The underlying § 2254 petition, filed in September 2012, is Mr. Calhoun's third. The district court dismissed his first two. . Mr. Calhoun’s nine claims are: \"(1) “Wrongful Termination of Social Security Disability Benefits by the Colorado District Court,” (2) \"Denial of Relief for Wrongful Prosecution,” (3) “Ineffective Assistance of Counsel,” (4) \"Violation of Due Process in Denial of State Habeas Corpus,” (5) \"Violation of the Double Jeopardy Clause,” (6) \"Defamation of Character,” (7) \"Violation of Title II of the Americans With Disabilities Act,” (8) “Fraudulent Record Keeping,” and (9) \"Coerced and" }, { "docid": "7706491", "title": "", "text": "J., concurring). . Despite the majority opinion's contention to the contrary, a court of appeals — specifically, the Ninth Circuit — has held that a defendant is in custody for habeas purposes even when the sentence imposed for the original conviction has fully expired at the time his petition is filed. Zichko v. Idaho, 247 F.3d 1015 (9th Cir.2001). It is true, as the majority opinion notes, ante at 337, n. 2, that the petitioner in Zichko was incarcerated for failure to register as a sex offender at the time he filed his petition. But this does not change the fact that the Ninth Circuit allowed the defendant to use a habeas petition to collaterally \"challeng[e] an earlier, expired rape conviction.” Zichko, 247 F.3d at 1019. The clear implication of the majority opinion’s attempt to distinguish Zichko leads to the untenable conclusion that Wilson could meet the custody requirements for filing his § 2254 petition by intentionally violating his sex offender registration requirements and causing his own arrest. . Notably, the Supreme Court's holding in Daniels was not based on a determination that the petitioner had failed to satisfy the custody requirement of § 2255 or that the habeas statute was insufficiently robust to allow for a collateral attack of an expired sentence through a challenge to an enhanced sentence. See 532 U.S. at 383, 121 S.Ct. 1578 (\"To be sure, the text of § 2255 is broad enough to cover a claim that an enhanced federal sentence violates due process.”). Instead, the Supreme Court's holding in Daniels rested on the “the goals of easy administration and finality,” which alone “justified] foreclosing relief under § 2255.” Id. However, even these grounds were based on an assumption that \"[the] prior conviction used to enhance [the] federal sentence is no longer open to direct or collateral attack in its own right because tlte defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), [such] that defendant is without recourse.” Id. at 382, 121 S.Ct. 1578 (emphasis added). . The majority suggests that Wilson may be" }, { "docid": "12009331", "title": "", "text": "read the ‘in custody’ requirement out of the statute” and reward law-breakers, because sex offenders who fail to register would have an additional opportunity to challenge their underlying convictions—no matter how old—while individuals who abide by registration requirements would forgo such an opportunity. Id. at 492, 109 S.Ct. 1923; see Wilson, 689 F.3d at 341 & n.2 (Wynn, J., dissenting) (describing as “untenable” the “conclusion that [a petitioner] could meet the custody requirements for filing his § 2254 petition by intentionally violating his sex offender registration requirements and causing his own arrest”); Davis, 524 F.Supp.2d at 190 (explaining that reading “in custody” broadly would mean that “any time an individual suffered some collateral penalty due to his status as a sex offender ... he could resurrect a habeas challenge to the underlying predicate conviction”). Furthermore, allowing a petitioner in custody for a later conviction to challenge an earlier, expired conviction would countenance “end run[s] around statutes of limitations and other procedural barriers that would preclude the movant from attacking the prior conviction directly.” Daniels v. United States, 532 U.S. 374, 383, 121 S.Ct. 1578, 149 L.Ed.2d 590 (2001) (precluding collateral attack via 28 U.S.C. § 2255 of a prior conviction used to enhance a federal sentence). In short, the registration requirement and resulting incarceration for noncompliance are collateral consequences of Bon-ser’s expired 2006 conviction and they do not render him in “custody” on that conviction. Thus, the District Court correctly dismissed Bonser’s § 2254 habeas petition challenging his 2006 conviction. Ill For the foregoing reasons, we will affirm the District Court’s order dismissing Bonser’s petition for lack of jurisdiction. This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. . Even though the sexually violent predator designation was made during Bonser’s sentencing, Pennsylvania deems the determination a civil \"collateral consequence of a conviction” and hence \"not a sentence.” Commonwealth v. Whanger, 30 A.3d 1212, 1215 (Pa. Super. Ct. 2011) (citing Commonwealth v. Leidig, 598 Pa. 211, 956 A.2d 399, 404-05, 406 (2008) (holding that \"the registration requirements of Megan’s Law" }, { "docid": "12009326", "title": "", "text": "of 294 days to two years less one day and, given the time he had already spent in custody, was immediately placed on parole. Bonser violated his parole and was rein-carcerated until August 2007. Bonser did not file a direct appeal of his 2006 conviction and unsuccessfully sought post-conviction relief. In 2013, Bonser was convicted in the Court of Common Pleas for failing to register as a sex offender, in violation of 18 Pa. Const. Stat. § 4915.1. He was sentenced to an indeterminate term of three to six years’ imprisonment and is presently incarcerated. Bonser filed a § 2254 petition challenging his 2006 conviction. Although the 2006 sentence had expired, Bonser contends that the connection between that sentence and his 2013 conviction satisfies the “in custody” jurisdictional requirement of § 2254 to allow him to challenge the 2006 conviction. The District Court dismissed the petition for lack of jurisdiction, holding that the “sex offender registration requirement [imposed following his 2006 conviction], including any penalties resulting from failure to comply with that requirement, are collateral consequences of the underlying expired conviction,” and thus Bonser’s custodial status as a result of his 2013 conviction was insufficient to satisfy § 2254’s “in custody” requirement for him to challenge his 2006 conviction. App. 7. Bonser appeals. II “[C]ustody is the passport to federal habeas corpus jurisdiction.” United States ex rel. Dessus v. Pennsylvania, 452 F.2d 557, 560 (3d Cir. 1971). A federal court has jurisdiction to entertain a habeas petition only if the petitioner is “in custody” at the time he files his petition. 28 U.S.C. § 2254(a). “[A] prisoner [need not] be physically confined in order to challenge his sentence [through] habeas corpus.” Maleng v. Cook, 490 U.S. 488, 491, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989). He may be considered “in custody” if he is subject to conditions of his sentence, such as supervised release, parole, or community service, that “significantly restrain [his] liberty.” Virsnieks v. Smith, 521 F.3d 707, 717 (7th Cir. 2008)- (internal quotation marks and alterations omitted); see also Barry v. Bergen Cty. Prob. Dep’t, 128 F.3d 152," }, { "docid": "23272636", "title": "", "text": "the time he files the petition[ ] ... he is in custody pursuant to another conviction that is positively and demonstrably related to the conviction he attacks.” Carter v. Procunier, 755 F.2d 1126, 1129 (5th Cir.1985). Zichko was subject to Idaho’s registration requirement only because of his initial rape conviction. We now hold that a habeas petitioner is “in custody” for the purposes of challenging an earlier, expired rape conviction, when he is incarcerated for failing to comply with a state sex offender registration law because the earlier rape conviction “is a necessary predicate” to the failure to register charge. Brock, 31 F.3d at 890 (holding that the habeas petitioner could challenge an earlier, expired conviction while involuntarily committed for treatment as a violent sexual predator). The Supreme Court’s recent decision in Lackawanna County Dist. Atty. v. Coss, 121 S.Ct. 1567 (2001), is not to the contrary. There, the Supreme Court held that “if a prior conviction used to enhance a federal sentence is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), then that defendant ... may not collaterally attack his prior conviction through” a habeas petition related to his current conviction. Id. at 1573; see also Daniels v. United States, 121 S.Ct. 1578, 1583 (2001) (same). But before reaching that holding, the Court also held that the petitioner was “in custody” for jurisdictional purposes because he alleged that the earlier, unconstitutional conviction had enhanced his later sentence. Lackawanna County, 121 S.Ct. at 1573. Similarly, here, Zichko’s current conviction for failing to register is allegedly the product of an unconstitutional prior conviction. The district court, therefore, had jurisdiction over Zichko’s claim. Because we now hold that Zichko’s claim is procedurally defaulted, we do not address whether we are barred from reaching the merits of his habeas petition by the Lackawanna County decision or whether his claim is covered by an exception to that rule. B. Presentation To The District Court The State of Idaho first argues that" }, { "docid": "12009328", "title": "", "text": "161 (3d Cir. 1997) (community service that requires a defendant to be in a certain place or perform certain activity is a restraint on liberty). The custody requirement “is designed to preserve the writ ... as a remedy for severe restraints on individual liberty.” Hensley v. Mun. Ct., 411 U.S. 345, 351, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973). Collateral consequences, that is, “those consequences with negligible effects on a petitioner’s physical liberty of movement,” by definition do not severely restrain individual liberty. Virsnieks, 521 F.3d at 718. Our sister circuits have uniformly held that sex offender registration requirements are collateral consequences of a conviction. Calhoun v. Att’y Gen. of Colo., 745 F.3d 1070, 1074 (10th Cir. 2014) (Colorado statute); Wilson v. Flaherty, 689 F.3d 332, 338 (4th Cir. 2012) (Virginia and Texas); Leslie v. Randle, 296 F.3d 518, 521-23 (6th Cir. 2002) (Ohio); Virsnieks, 521 F.3d at 720 (Wisconsin); Zichko v. Idaho, 247 F.3d 1015, 1019 (9th Cir. 2001) (Idaho); McNab v. Kok, 170 F.3d 1246, 1247 (9th Cir. 1999) (per curiam) (Oregon); Henry v. Lungren, 164 F.3d 1240, 1241-42 (9th Cir. 1999) (California); Willliamson v. Gregoire, 151 F.3d 1180, 1184 (9th Cir. 1998) (Washington). Unlike parole and supervised release, sex offender registration requirements “do not constitute ... physical restraints,” and thus do not satisfy the custody requirement of § 2254. Wilson, 689 F.3d at 338. As such, challenges to these requirements are not “cognizable in habeas.” Virsnieks, 521 F.3d at 718-19 (registration does not restrain “freedom of movement”). Being subject to registration requirements . is itself a collateral consequence, and so too are any penalties—including conviction and incarceration—that result from the violation of such requirements. See Maleng, 490 U.S. at 492, 109 S.Ct. 1923 (explaining that a petitioner subject to collateral consequences “suffers no present restraint from a conviction” even where that conviction could enhance a sub-sequence sentence); Virsnieks, 521 F.3d at 720 (holding that “the future threat of incarceration for registrants who fail to comply” is insufficient); Gregoire, 151 F.3d at 1184 (potential incarceration for violating the registration requirement does not “create custody”); Davis v. Nassau Cty.," }, { "docid": "12009325", "title": "", "text": "OPINION SHWARTZ, Circuit Judge. Robert Bonser seeks habeas relief pursuant to 28 U.S.C. § 2254 based on his 2006 conviction for unlawful contact with a minor. As a result of his conviction, he was required to register as a sex offender. He asserts that his failure to register led to a conviction and imprisonment in 2013 and that he is now “in custody” because he failed to comply with a condition arising from his 2006 conviction. The District Court correctly concluded that Bonser is not in custody for the 2006 conviction, and appropriately dismissed the habeas petition for lack of jurisdiction. I In 2006, Bonser was convicted of unlawful contact with a minor, a first-degree misdemeanor under 18 Pa. Const. Stat. § 6318, in the Pennsylvania Court of Common Pleas. Based on this conduct, the sentencing court determined that Bonser was a sexually violent predator under Pennsylvania’s Megan’s Law, then codified at 42 Pa. Const. Stat. § 9796.1(b)(3), subjecting him to a lifetime sex offender registration requirement. Bonser was sentenced to an indeterminate prison term of 294 days to two years less one day and, given the time he had already spent in custody, was immediately placed on parole. Bonser violated his parole and was rein-carcerated until August 2007. Bonser did not file a direct appeal of his 2006 conviction and unsuccessfully sought post-conviction relief. In 2013, Bonser was convicted in the Court of Common Pleas for failing to register as a sex offender, in violation of 18 Pa. Const. Stat. § 4915.1. He was sentenced to an indeterminate term of three to six years’ imprisonment and is presently incarcerated. Bonser filed a § 2254 petition challenging his 2006 conviction. Although the 2006 sentence had expired, Bonser contends that the connection between that sentence and his 2013 conviction satisfies the “in custody” jurisdictional requirement of § 2254 to allow him to challenge the 2006 conviction. The District Court dismissed the petition for lack of jurisdiction, holding that the “sex offender registration requirement [imposed following his 2006 conviction], including any penalties resulting from failure to comply with that requirement, are collateral" }, { "docid": "10798278", "title": "", "text": "real estate broker and insurance agent, Williamson v. Gregoire, 151 F.3d 1180, 1183 (9th Cir.1998) (collecting cases). Mr. Calhoun argues that he can be taken into custody if he violates the registration requirements. We agree with the courts holding that “the future threat of incarceration for registrants who fail to comply with the [sex-offender registration] statute[s] is insufficient to satisfy the custody requirement.” Virsnieks, 521 F.3d at 720 (collecting cases). Moreover, the Colorado sex-offender registration requirements are remedial, not punitive. People v. Sheth, 318 P.3d 533, 534 (Colo.Ct.App.) (“The purpose of [sex-offender] registration is not to punish the defendant, but to protect the community and to aid law enforcement officials in investigating future sex crimes.” (internal quotation marks omitted)), cert. denied, 2013 WL 6795156 (Colo.2013). It is undisputed that Mr. Calhoun was unconditionally released from the obligations of his probation before he filed his § 2254 petition. Accordingly, there is no condition of his sentence that could subject him to reincarceration or place another restraint on his liberty. He is free to live, work, travel, and engage in all legal activities without limitation and without approval by a government official. Consequently, we conclude that the Colorado sex-offender registration requirements at issue here are collateral consequences of conviction that do not impose a severe restriction on an individual’s freedom. Therefore, they are insufficient to satisfy the custody requirement of § 2254. Permitting a petitioner whose sentence has completely expired and who “suffers no present restraint from [the] conviction” to challenge the conviction at any time on federal habeas “would read the ‘in custody requirement out of the statute.” Maleng, 490 U.S. at 492, 109 S.Ct. 1923. Therefore, we join the circuits uniformly holding that the requirement to register under state sex-offender registration statutes does not satisfy § 2254’s condition that the petitioner be “in custody” at the time he files a habeas petition. See Wilson v. Flaherty, 689 F.3d 332, 335, 338-39 (4th Cir.2012) (considering Virginia and Texas sex-offender-registration statutes; petitioner moved from Virginia to Texas), cert. denied, — U.S.-, 133 S.Ct. 2853, — L.Ed.2d - (2013); Virsnieks, 521 F.3d at" }, { "docid": "12009327", "title": "", "text": "consequences of the underlying expired conviction,” and thus Bonser’s custodial status as a result of his 2013 conviction was insufficient to satisfy § 2254’s “in custody” requirement for him to challenge his 2006 conviction. App. 7. Bonser appeals. II “[C]ustody is the passport to federal habeas corpus jurisdiction.” United States ex rel. Dessus v. Pennsylvania, 452 F.2d 557, 560 (3d Cir. 1971). A federal court has jurisdiction to entertain a habeas petition only if the petitioner is “in custody” at the time he files his petition. 28 U.S.C. § 2254(a). “[A] prisoner [need not] be physically confined in order to challenge his sentence [through] habeas corpus.” Maleng v. Cook, 490 U.S. 488, 491, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989). He may be considered “in custody” if he is subject to conditions of his sentence, such as supervised release, parole, or community service, that “significantly restrain [his] liberty.” Virsnieks v. Smith, 521 F.3d 707, 717 (7th Cir. 2008)- (internal quotation marks and alterations omitted); see also Barry v. Bergen Cty. Prob. Dep’t, 128 F.3d 152, 161 (3d Cir. 1997) (community service that requires a defendant to be in a certain place or perform certain activity is a restraint on liberty). The custody requirement “is designed to preserve the writ ... as a remedy for severe restraints on individual liberty.” Hensley v. Mun. Ct., 411 U.S. 345, 351, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973). Collateral consequences, that is, “those consequences with negligible effects on a petitioner’s physical liberty of movement,” by definition do not severely restrain individual liberty. Virsnieks, 521 F.3d at 718. Our sister circuits have uniformly held that sex offender registration requirements are collateral consequences of a conviction. Calhoun v. Att’y Gen. of Colo., 745 F.3d 1070, 1074 (10th Cir. 2014) (Colorado statute); Wilson v. Flaherty, 689 F.3d 332, 338 (4th Cir. 2012) (Virginia and Texas); Leslie v. Randle, 296 F.3d 518, 521-23 (6th Cir. 2002) (Ohio); Virsnieks, 521 F.3d at 720 (Wisconsin); Zichko v. Idaho, 247 F.3d 1015, 1019 (9th Cir. 2001) (Idaho); McNab v. Kok, 170 F.3d 1246, 1247 (9th Cir. 1999) (per curiam) (Oregon); Henry" }, { "docid": "7706490", "title": "", "text": "L.Ed.2d 1 (2008), and by the Supreme Court’s mandate to construe the “custody” requirement liberally, particularly in cases involving deprivations on liberty, credible claims of actual innocence, and an absence of forum for redress. I am deeply troubled that our legal system would be construed to prevent a person with compelling evidence of his actual innocence and wrongful conviction from accessing a forum in which to clear his name, while, at the same time, restrain the liberty of such a person under a regime created to surveil society’s most disdained criminal offenders. That Wilson’s completion of an arguably undeserved sentence is the condition that the majority opinion contends serves to seal off the courts is especially egregious. It is in effect an additional punishment that the majority opinion inflicts upon Wilson. Because I believe the law does not compel the result reached by the majority opinion today, and that this Court has the authority — indeed, the moral imperative— to grant Wilson the hearing that he seeks, I respectfully dissent. . Ante at 340-41 (Davis, J., concurring). . Despite the majority opinion's contention to the contrary, a court of appeals — specifically, the Ninth Circuit — has held that a defendant is in custody for habeas purposes even when the sentence imposed for the original conviction has fully expired at the time his petition is filed. Zichko v. Idaho, 247 F.3d 1015 (9th Cir.2001). It is true, as the majority opinion notes, ante at 337, n. 2, that the petitioner in Zichko was incarcerated for failure to register as a sex offender at the time he filed his petition. But this does not change the fact that the Ninth Circuit allowed the defendant to use a habeas petition to collaterally \"challeng[e] an earlier, expired rape conviction.” Zichko, 247 F.3d at 1019. The clear implication of the majority opinion’s attempt to distinguish Zichko leads to the untenable conclusion that Wilson could meet the custody requirements for filing his § 2254 petition by intentionally violating his sex offender registration requirements and causing his own arrest. . Notably, the Supreme Court's holding in" }, { "docid": "21641189", "title": "", "text": "be ‘in custody’ under the conviction or sentence under attack at the time his petition is filed.” Maleng, 490 U.S. at 490-91, 109 S.Ct. 1923 (holding that a petitioner could challenge an impending state-prison sentence be cause he was “in custody” for the purposes of federal habeas corpus). Collateral consequences of a conviction, such as the ability “to vote, engage in certain businesses, hold public office, or serve as a juror,” are therefore insufficient to satisfy the “in custody” requirement for habeas jurisdiction. Id. at 491-92, 109 S.Ct. 1923. Although Leslie is currently incarcerated, he is not seeking relief from the conviction or sentence upon which his confinement is based. He claims instead that, as it applies to him, Ohio’s sexual-predator statute is unconstitutional. As the magistrate judge’s Report and Recommendation points out, neither the Supreme Court nor the Sixth Circuit has confronted the question of “whether or not a sex offender’s subjection to state statutory classification, registration and community notification provisions is merely a collateral consequence of his conviction or, conversely, constitutes a severe and immediate restraint on his liberty sufficient to satisfy the ‘in custody’ prerequisite for federal habeas corpus review.” The Ninth Circuit, however,’ has addressed this very question with regard to similar sexual-predator statutes, and has concluded' that petitioners who have completed their prison sentences but who are required to register as sex offenders do not satisfy the “in custody” requirement of 28 U.S.C. § 2254. McNab v. Kok, 170 F.3d 1246, 1247 (9th Cir.1999) (dismissing a habeas petition after concluding that Oregon’s sex-offender statute does not place an offender “in custody” for purposes of 28 U.S.C. § 2254); Henry v. Lungren, 164 F.3d 1240, 1241-42 (9th Cir.1999) (same conclusion for California statute); Williamson v. Gregoire, 151 F.3d 1180, 1184 (9th Cir.1998) (same conclusion for Washington statute). Instead, the court has held that the classification, registration, and notification requirements are “more properly characterized as a collateral consequence of conviction rather than as a restraint on liberty.” Williamson, 151 F.3d at 1183. The Ninth Circuit has noted that the federal court “precedents that have found a restraint" }, { "docid": "12009332", "title": "", "text": "United States, 532 U.S. 374, 383, 121 S.Ct. 1578, 149 L.Ed.2d 590 (2001) (precluding collateral attack via 28 U.S.C. § 2255 of a prior conviction used to enhance a federal sentence). In short, the registration requirement and resulting incarceration for noncompliance are collateral consequences of Bon-ser’s expired 2006 conviction and they do not render him in “custody” on that conviction. Thus, the District Court correctly dismissed Bonser’s § 2254 habeas petition challenging his 2006 conviction. Ill For the foregoing reasons, we will affirm the District Court’s order dismissing Bonser’s petition for lack of jurisdiction. This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. . Even though the sexually violent predator designation was made during Bonser’s sentencing, Pennsylvania deems the determination a civil \"collateral consequence of a conviction” and hence \"not a sentence.” Commonwealth v. Whanger, 30 A.3d 1212, 1215 (Pa. Super. Ct. 2011) (citing Commonwealth v. Leidig, 598 Pa. 211, 956 A.2d 399, 404-05, 406 (2008) (holding that \"the registration requirements of Megan’s Law are a collateral consequence of conviction”)). . The District Court had jurisdiction under .18 U.S.C.. § 3231 and 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review a district court’s dismissal of a habeas corpus petition de novo. Eley v. Erickson, 712 F.3d 837, 845 (3d Cir. 2013). , Section 2254 provides that a federal court \"shall entertain an application for a writ of habeas corpus [on] behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). . Only the Court of Appeals for the Ninth Circuit has accepted the view that a petitioner is \"in custody,” \"for the purposed of challenging an earlier, expired rape conviction, when he is incarcerated for failing to comply with a state sex offender registration law because the earlier rape conviction ‘is a necessary predicate' for the failure to register charge.” Zichko," }, { "docid": "12009329", "title": "", "text": "v. Lungren, 164 F.3d 1240, 1241-42 (9th Cir. 1999) (California); Willliamson v. Gregoire, 151 F.3d 1180, 1184 (9th Cir. 1998) (Washington). Unlike parole and supervised release, sex offender registration requirements “do not constitute ... physical restraints,” and thus do not satisfy the custody requirement of § 2254. Wilson, 689 F.3d at 338. As such, challenges to these requirements are not “cognizable in habeas.” Virsnieks, 521 F.3d at 718-19 (registration does not restrain “freedom of movement”). Being subject to registration requirements . is itself a collateral consequence, and so too are any penalties—including conviction and incarceration—that result from the violation of such requirements. See Maleng, 490 U.S. at 492, 109 S.Ct. 1923 (explaining that a petitioner subject to collateral consequences “suffers no present restraint from a conviction” even where that conviction could enhance a sub-sequence sentence); Virsnieks, 521 F.3d at 720 (holding that “the future threat of incarceration for registrants who fail to comply” is insufficient); Gregoire, 151 F.3d at 1184 (potential incarceration for violating the registration requirement does not “create custody”); Davis v. Nassau Cty., 524 F.Supp.2d 182, 189 (E.D.N.Y. 2007) (holding that “the fact that these collateral penalties are not merely a possibility, but have actually materialized ..., does not make them any less collateral and, thus, does not change the ‘in custody’ analysis”). Bonser’s present incarceration is punishment for failing to comply with a collateral consequence of his 2006 conviction. His current custodial status “is not a continuation of the [expired] sex offense sentence ..., but rather is pursuant to an entirely separate conviction” for failing to register. Davis, 524 F.Supp.2d at 190 (citing Maleng, 490 U.S. at 491, 109 S.Ct. 1923). In other words, because Bonser’s 2006 conviction had “fully expired ... [w]hen the [2013] sentence [was] imposed, it is pursuant to [that] conviction[,] [not the 2006 conviction,] that [he] is incarcerated and is therefore ‘in custody.’” Maleng, 490 U.S. at 492-93, 109 S.Ct. 1923. Bonser thus does not satisfy the “in custody” requirement and cannot obtain review of his prior conviction. Moreover, concluding that a conviction for violating registration requirements is not a collateral, consequence “would" }, { "docid": "12009333", "title": "", "text": "are a collateral consequence of conviction”)). . The District Court had jurisdiction under .18 U.S.C.. § 3231 and 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review a district court’s dismissal of a habeas corpus petition de novo. Eley v. Erickson, 712 F.3d 837, 845 (3d Cir. 2013). , Section 2254 provides that a federal court \"shall entertain an application for a writ of habeas corpus [on] behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). . Only the Court of Appeals for the Ninth Circuit has accepted the view that a petitioner is \"in custody,” \"for the purposed of challenging an earlier, expired rape conviction, when he is incarcerated for failing to comply with a state sex offender registration law because the earlier rape conviction ‘is a necessary predicate' for the failure to register charge.” Zichko, 247 F.3d at 1019 (quotation marks omitted). This holding contravenes the well-established principle that registration requirements are collateral consequences and thus do not create custody. That court also seems to have misinterpreted Maleng and Lackawanna County District Attorney v. Coss, 532 U.S. 394, 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001), when it stated that the Supreme Court found jurisdiction because the petitioner \"alleged that the earlier, unconstitutional conviction had enhanced his later sentence.” Id. at 1020. In fact, the Supreme Court used the fact that each petitioner's earlier conviction had enhanced his later sentence not to create custody, but to justify a liberal construction of the petition before it as challenging the later sentence they had not yet begun to serve, which did satisfy the jurisdiction requirement. Maleng, 490 U.S. at 493-94, 109 S.Ct. 1923; Coss, 532 U.S. at 401-02, 121 S.Ct. 1567. While Maleng cautioned that it “expressed] no view on the extent to which the [expired] conviction itself may be subject to challenge in the attack upon the [newer] sentences which it was" }, { "docid": "10798277", "title": "", "text": "writ of habeas corpus is not “generally available ... for every violation of federal rights.” Lehman v. Lycoming Cnty. Children’s Servs. Agency, 458 U.S. 502, 510, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982). “Thus, the collateral consequences of a conviction, those consequences with negligible effects on a petitioner’s physical liberty of movement, are insufficient to satisfy the custody requirement.” Virsnieks v. Smith, 521 F.3d 707, 718 (7th Cir.2008) (collecting cases). For example, “the payment of restitution or a fine, absent more, is not the sort of significant restraint on liberty contemplated in the custody requirement of the federal habeas statutes.” Erlandson v. Northglenn Mun. Court, 528 F.3d 785, 788 (10th Cir.2008) (internal quotation marks omitted). Other circumstances that have been held to be collateral consequences of conviction, rather than a restraint on liberty, are the “inability to vote, engage in certain businesses, hold public office, or serve as a juror,” Maleng, 490 U.S. at 491-92, 109 S.Ct. 1923, revocation of a driver’s license, medical license, or a license to practice law, and disqualification as a real estate broker and insurance agent, Williamson v. Gregoire, 151 F.3d 1180, 1183 (9th Cir.1998) (collecting cases). Mr. Calhoun argues that he can be taken into custody if he violates the registration requirements. We agree with the courts holding that “the future threat of incarceration for registrants who fail to comply with the [sex-offender registration] statute[s] is insufficient to satisfy the custody requirement.” Virsnieks, 521 F.3d at 720 (collecting cases). Moreover, the Colorado sex-offender registration requirements are remedial, not punitive. People v. Sheth, 318 P.3d 533, 534 (Colo.Ct.App.) (“The purpose of [sex-offender] registration is not to punish the defendant, but to protect the community and to aid law enforcement officials in investigating future sex crimes.” (internal quotation marks omitted)), cert. denied, 2013 WL 6795156 (Colo.2013). It is undisputed that Mr. Calhoun was unconditionally released from the obligations of his probation before he filed his § 2254 petition. Accordingly, there is no condition of his sentence that could subject him to reincarceration or place another restraint on his liberty. He is free to live, work, travel," }, { "docid": "10798273", "title": "", "text": "KELLY, Circuit Judge. Ronald C. Calhoun, proceeding pro se, appeals the district court’s dismissal of his habeas corpus petition filed under 28 U.S.C. § 2254. The district court held that Mr. Calhoun was not “in custody,” as required to invoke the jurisdiction of the federal courts. Mr. Calhoun asserts that he is in custody for the purpose of § 2254 because he must register as a sex offender. This court issued a certificate of appeala-bility on the following issue: whether Mr. Calhoun’s ongoing registration obligations under Colorado’s Sex Offender Registration Act satisfy the custody requirement of § 2254. We affirm the district court’s dismissal for lack of jurisdiction. I. BACKGROUND In October 2002, Mr. Calhoun entered a guilty plea to a charge of unlawful sexual contact in violation of Colorado Revised Statute § 18-3-404(l)(a). He was sentenced to two years of probation, ordered to complete a sex-offense-specific treatment program, and required to register as a sex offender. In 2003, due to a probation violation, he was sentenced to two years in prison, but the sentence was suspended on the condition that he successfully complete two years of sex-offense-specific probation. His probation was terminated on February 2, 2007, and in September 2012, he filed the underlying habe-as petition asserting nine claims. Because he was convicted of a sex offense, Mr. Calhoun is required to register pursuant to Colorado’s sex-offender statutes. See Colo.Rev.Stat. § 16-22-103. He must annually appear in person at the local sheriffs office to be photographed and fingerprinted. Id. § 16-22-108(6). In addition, he must provide his address, place of employment, vehicle information, and email and other internet identifiers. Id. § 16-22-109(1). He must also reregis-ter within five days of any change to that information, id. § 16-22-108(3), and the sheriff must verify his residential address at least annually, id. § 16-22-109(3.5)(a). He may request release from the duty to register as a sex offender ten years after the end of his probationary period. See id. § 16-22-113(l)(b). Mr. Calhoun asserts that these registration requirements sufficiently restrict his freedom to meet § 2254’s custody requirement. II. DISCUSSION Section 2254(a)" } ]

[ { "docid": "12409235", "title": "", "text": "joint and several approach would “guarantee[ ] inefficiency, potential duplication, and prolongation of the litigation process in a CERCLA case.” T H Agric., 884 F.Supp. at 361. Our holding today is consistent with statements by the Supreme Court, and by five other circuits, recognizing in contexts similar to this one, that a CERCLA claim by a PRP against another PRP is necessarily for contribution. Key Tronic, 511 U.S. at 818 n. 11, 114 S.Ct. at 1966 n. 11 (implying that claim by a PRP under § 107 would be “for contribution against those treated as joint tortfeasors”); United Tech., 33 F.3d at 99 n. 8 & 100 (“a party who himself is hable [can] only seek ... contribution rather than complete indemnity”); New Castle County, 111 F.3d at 1120 (agreeing with “conclusion reached by [other] circuits” that an “action brought by a [PRP] is by necessity a section 113 action for contribution”); Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir.1996); United States v. Colorado & E. R.R. Co., 50 F.3d 1530, 1536 (10th Cir. 1995); Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 672-73 (5th Cir.1989). In addition, three circuits have expressly rejected an argument nearly identical to the one advanced by the Pinal Group. In essence, those courts were faced with attempts by “working PRPs” to circumvent the contribution provisions of § 113. As discussed in more detail below, in those cases, the working PRP asserted a claim to apportion costs between all PRPs. However, to avoid the effect of § 113, the working PRP asserted that its claim was not really a “contribution” claim controlled by § 113, but rather a “cost recovery” claim under § 107 which, as such, was not subject to the limiting provisions of § 113. Likewise, the Pinal Group seeks to avoid the effect of § 113. By trying to obtain the totality of its costs immediately (subject to subsequent contribution counterclaims), it seeks to avoid the delay (and burden-of-proof rules) implicit in § 113(f)’s mechanism for the equitable allocation of costs among PRPs. In addition, by arguing" } ]

[ { "docid": "16486387", "title": "", "text": "extent that a party seeks contribution. See Halliburton NUS Corp., 111 F.3d 1116 (3d Cir.1997); Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir.1996); United States v. Colorado & Eastern Railroad Co., 50 F.3d 1530, 1534-36 (10th Cir.1995); United Technologies Corp., 33 F.3d at 101-03; Akzo, 30 F.3d at 764-65; Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 672 (5th Cir.1989). Having reached this determination, we will proceed to the next step in our analysis: whether Conrail’s § 107(a)(4)(B) claim falls within § 113(f)’s ambit. As its plain language indicates, § 113(f) is concerned with contribution. Although “contribution” is nowhere defined within CERCLA, it is a term with a familiar and readily acceptable meaning. Black’s Law Dictionary defines “contribution” as the recovery of “portional shares of judgment from other joint tort-feasors whose negligence contributed to the injury and who were also liable to the plaintiff.... The sharing of a loss or payment among several^] [t]he act of any one or several of a number of co-debtors, co-sureties, etc., in reimbursing one of their number who has paid the whole debt or suffered the whole liability, each to the extent of his proportionate share.” Black’s Law Dictionary 297 (5th ed.1979). As the Court of Appeals for the Seventh Circuit has described it, contribution denotes a claim “by and between jointly and severally hable parties for an appropriate division of the payment one of them has been compelled to make.” Akzo, 30 F.3d at 764; see also Colorado & Eastern, 50 F.3d at 1535-36; United Technologies, 33 F.3d at 101. We have found nothing that counsels against this reading. Accordingly we will adopt it. In view, therefore, of the language of § 113(f), we have little difficulty holding that Conrail is in fact seeking contribution from Reading and that Conrail must seek that remedy under § 113(f). See Colorado & Eastern, 50 F.3d at 1536 (“In our case, [the] claim ... must be classified as one for con tribution”); United Technologies, (“[applying this definition, the instant action clearly qualifies as an action for contribution under section 9613(f)(1)”); Akzo," }, { "docid": "22985952", "title": "", "text": ", 42 U.S.C. § 9613(f)(1) (permitting “any person” to seek contribution from “any other person” potentially liable under CERCLA § 107); see also H.R.Rep. No. 99-253(1), at 79 (1985), reprinted in 1986 U.S.C.C.A.N. 2835, 2861 (enunciating that a principal goal in passing CERC-LA § 113 was to “clarif[y] and confírm[ ] the right of a person held jointly and severally liable under CERCLA to seek contribution from other potentially liable parties, when the person believes that it has assumed a share of the cleanup or cost that may be greater than its equitable share under the circumstances.”). Our decision today to limit the recovery of a potentially responsible person to contribution under § 113(f) not only is in keeping with the holdings of other Circuits, see Pneumo Abex Corp. v. High Point, Thomasville & Denton R.R. Co., 142 F.3d 769, 776 (4th Cir.1998); New Castle County v. Halliburton NUS Corp., 111 F.3d 1116, 1120 (3d Cir.1997); Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir.1996); United States v. Colorado & Eastern R. Co., 50 F.3d 1530, 1536 (10th Cir.1995); United Technologies Corp. v. Browning-Ferris Industries, Inc., 33 F.3d 96, 100 (1st Cir.1994); Akzo Coatings, 30 F.3d at 764, but also gives CERCLA its full intended effect. In contrast to § 113(f)(1), which apportions liability based on equitable considerations and has a three-year statute of limitations, see 42 U.S.C. § 9613(g)(3), § 107(a) has a six-year statute of limitations, see 42 U.S.C. § 9613(g)(2). Were we to permit a potentially responsible person to elect recovery under either § 107(a) or § 113(f)(1), § 113(f)(1) would be rendered meaningless. See New Castle, 111 F.3d at 1122-23; United Technologies, 33 F.3d at 100-01. A recovering liable party would readily abandon a § 113(f)(1) suit in favor of the substantially more generous provisions of § 107(a). We decline to interpret § 107(a) so broadly that § 113(f)(1) would become a nullity. See Shore Realty, 759 F.2d at 1044 (“Without a clear congressional command otherwise, we will not construe a statute in any way that makes some of its provisions surplusage.”). The" }, { "docid": "23266148", "title": "", "text": "long list of circuit court cases — including Bedford Affiliates — stating that so-called PRPs could not pursue a section 107(a) action. See id. at 585. All but one of those cases are inapposite for the reason described supra: they considered plaintiffs that had either been held liable — or, because they had been sued, might imminently be held liable — under an administrative or court order or judgment. See Centerior Serv., 153 F.3d at 346 (stating that “the EPA issued a unilateral Administrative Order to the plaintiffs”); Pneumo Abex Corp. v. High Point, Thomasville & Denton R.R., 142 F.3d 769, 773 (4th Cir.1998) (stating that the plaintiff “began response activities at the site pursuant to state and federal EPA orders”); New Castle County v. Halliburton NUS Corp., 111 F.3d 1116, 1119 (3d Cir.1997) (stating that the United States had filed suit against the plaintiff); Redwing Carriers, Inc. v. Saraland Apart ments, 94 F.3d 1489, 1495 (11th Cir.1996) (stating that the plaintiff had entered into two consent orders with the EPA); United States v. Colorado & E. R.R. Co., 50 F.3d 1530, 1533 (10th Cir.1995) (stating that the party seeking to assert section 107(a) claims against third-party defendants had been sued by the EPA); United Techs. Corp. v. Browning-Ferris Inc., 1993 WL 660007 (D.Me. May 27, 1993), 1993 U.S. Dist. LEXIS 19160, at *2-*3 (stating that the United States had filed a civil action under CERCLA against a predecessor of the plaintiff in United Technologies Corp. v. Browning-Ferris Industries, Inc., 33 F.3d 96 (1st Cir.1994), another case cited by the Supreme Court in Cooper Industries). The only other case cited in this vein in Cooper Industries is Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298 (9th Cir.1997). We simply and respectfully disagree with the Ninth Circuit’s holding in Pinal Creek that a party that has incurred response costs voluntarily and, if sued, would be held liable under section 107(a), may only bring a contribution claim governed by section 113(f)(1). See id. at 1301-06. In particular, Cooper Industries is at odds with Pinal Creek Group’s view that “while §" }, { "docid": "23337339", "title": "", "text": "action or a contribution action. If it is a cost recovery action, it is timely; if it is a contribution action and we do not apply the discovery rule or equitable tolling, the action is not timely. We exercise plenary review over the district court’s interpretation of the relevant CERCLA and SARA provisions. Every court of appeals that has examined this issue has come to the same conclusion: a section 107 action brought for recovery of costs may be brought only by innocent parties that have undertaken cleanups. An action brought by a potentially responsible person is by necessity a section 113 action for contribution. See Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir.1996); United States v. Colorado & Eastern R.R. Co., 50 F.3d 1530, 1536 (10th Cir.1995); United Technologies Corp. v. Browning-Ferris Indus., Inc., 33 F.3d 96, 99 (1st Cir.1994); Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d 761, 764 (7th Cir.1994); see also Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 672 (5th Cir.1989). We agree with the conclusion reached by our sister courts. A section 107 cost recovery action imposes strict liability on potentially responsible persons for costs associated with haz ardous waste clean-up and site remediation. United States v. Alcan Aluminum Corp., 964 F.2d 252, 259 (3d Cir.1992); see also United States v. CDMG Realty Co., 96 F.3d 706, 712 (3d Cir.1996); Colorado & Eastern, 50 F.3d at 1535 (“it is now well settled that § 107 imposes strict liability on [potentially responsible persons]”); Tippins Inc. v. USX Corp., 37 F.3d 87, 92 (3d Cir.1994); H.R.Rep. No. 99-253(1), at 74 (1985), reprinted in 1986 U.S.C.C.A.N. 2835, 2856 (“liability under CERCLA is strict, that is, without regard to fault or willfulness”). In genera], a section 107 cost recovery action also imposes joint and several liability on potentially responsible persons. Alcan Aluminum, 964 F.2d at. 268; see also Rumpke of Indiana, Inc. v. Cummins Engine Co., Inc., 107 F.3d 1235, 1240 (7th Cir.1997); Colorado & Eastern, 50 F.3d at 1535 (“It is also well settled that § 107 imposes joint and several liability" }, { "docid": "6586877", "title": "", "text": "not attributable to the bearings themselves. The parties contemplated that the bearings were a valuable product for which the Foundry paid a competitive price. For these reasons, we hold that appellants are not “covered persons” under CERCLA. Contribution Action Properly under Section 9613 or 9607 On remand, the district court, although it will dismiss the appellants from the suit, must apportion liability among the remaining parties to the suit. That apportionment process should be guided by section 9613 rather than section 9607. Section 9607 allows “any person” to recover all response costs from any responsible parties, whose liability is then generally joint and several. OHM Remediation Servs. v. Evans Cooperage, Co., Inc., 116 F.3d 1574, 1578 (5th Cir. 1997); United States v. Alcan Aluminum Corp., 964 F.2d 252, 268 (3d Cir.1992); Rumpke of Indiana, Inc. v. Cummins Engine Co., Inc., 107 F.3d 1235, 1240 (7th Cir.1997); United States v. Colorado & Eastern RR Co., 50 F.3d 1530, 1535 (10th Cir.1995); United Technologies v. Browning-Ferris Indus., Inc., 33 F.3d 96, 100 (1st Cir.1994); United States v. Rohm & Haas Co., 2 F.3d 1265, 1280 (3d Cir.1993). Section 9613, add ed by SARA in 1986, creates a cause of action for contribution from “any other person who is liable or potentially liable.” 42 U.S.C. § 9613(f)(1) (emphasis added). The courts have held consistently that section 9613 must be used by parties who are themselves potentially responsible parties. See, New Castle County v. Halliburton, 111 F.3d 1116, 1120 (3d Cir.1997); Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir.1996); United States v. Colorado & Eastern R.R. Co., 50 F.3d 1530, 1536 (10th Cir.1995); United Technologies Corp. v. Browning-Ferris Indus., Inc., 33 F.3d 96, 99 (1st Cir.1994); Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d 761, 764 (7th Cir.1994); Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 672 (5th Cir.1989). As the case before the court involves entirely potentially responsible parties, such parties must seek contribution under section 9613. The opinion below is reversed and the case is remanded. REVERSED AND REMANDED . Both bronze and brass are copper alloys," }, { "docid": "16361315", "title": "", "text": "section 107(a) claim against other PRPs because such claims are for joint and several liability and a PRP’s liability is “several-only.” Pinal Creek, 118 F.3d at 1303, 1306; id. at 1302 (opining that “a PRP is not entitled to recover all its response costs from other PRPs” because, by definition, a PRP is partially responsible for some of the costs); id. at 1303 (“[A] CERCLA claim by a PRP against another PRP is necessarily for contribution.”). Evidently then, the first question left open in Aviall, whether PRPs have a cost recovery claim for joint and several liability, has already been answered in the negafive by the Ninth Circuit in Pinal Creek. Likewise, the second question, whether PRPs may pursue a section 107 cost recovery action for some form of liability other than joint and several, also appears to be decided in this circuit. Pinal Creek held that a PRP does not have a cost recovery action and instead has only a contribution action, implicitly provided by section 107 and regulated by the terms of section 113. 118 F.3d at 1305 n. 7. Moreover, the Ninth Circuit has stated more than once that the language and structure of CERCLA create an action for cost recovery based only on joint and several liability. W. Props., 358 F.3d at 690 (refusing to read into the section 107 cost recovery action, against its language, authority to allocate liability proportionally); Fireman’s Fund Ins. Co. v. City of Lodi, 302 F.3d 928, 945 (9th Cir.2002) (recognizing, in dicta, that in a section 107 action for cost recovery, “liability is joint and several” (emphasis added)); State v. Montrose Chemical Corp. of Cal, 104 F.3d 1507, 1518 n. 9 (9th Cir.1997) (same). But see Price v. U.S. Navy, 39 F.3d 1011, 1018 (9th Cir.1994) (affirming the imposition of proportionate liability, without discussing the relationship between sections 107 and 113, because “CERCLA does not mandate the imposition of joint and several liability” and simply allows for “it in cases of indivisible harm”). Although some wiggle room may remain, Ninth Circuit case law does not seem to be amenable to" }, { "docid": "1411403", "title": "", "text": "issue with which we are confronted: whether a § 106 or § 107 action is a statutory prerequisite to a § 113(f)(1) contribution action. See OHM Remediation Servs. v. Evans Cooperage Co., Inc., 116 F.3d 1574, 1582 n. 2 (5th Cir.1997) (permitting contribution claim against third-party defendant, but specifically stating that the court “express[es] no opinion as to whether a party may be considered a PRP before being sued under CERCLA”); Geraghty & Miller, 234 F.3d at 925 (analyzing the statute of limitations provisions set forth in § 113(g)(2), and holding that a contribution action must be commenced within three years of the completion of removal action); Crofton Ventures Ltd. P’ship v. G & H P’ship, 258 F.3d 292, 297 (4th Cir.2001) (permitting § 113 action to proceed after state-ordered cleanup, but failing to specifically address the language of § 113(f)(1)); Bedford Affiliates, 156 F.3d at 424 (permitting § 113 action after state-ordered cleanup, but never addressing what requirements are imposed by § 113's specific language); PMC, Inc., 151 F.3d at 618 (holding § 113 preempts recovery under state contribution law); Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298, 1306 (9th Cir.1997) (holding PRP is limited to recovery from other PRPs under § 113, and cannot utilize § 107); Rumpke of Ind., Inc. v. Cummins Engine Co., 107 F.3d 1235, 1241 (7th Cir.1997) (noting in dicta that \"a § 106 or § 107(a) action apparently must either be ongoing or already completed before § 113(f)(1) is available”). Because none of these circuit court decisions specifically confront the issue before us, we reject Aviall’s contention that our interpretation conflicts with existing precedent. See Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 69 L.Ed. 411 (1925) (holding that \"[qjuestions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents”). . Several district courts have held that contribution under § 113(f)(1) is conditioned on the existence of a prior § 106 or § 107 cost recovery action. See" }, { "docid": "6586878", "title": "", "text": "Rohm & Haas Co., 2 F.3d 1265, 1280 (3d Cir.1993). Section 9613, add ed by SARA in 1986, creates a cause of action for contribution from “any other person who is liable or potentially liable.” 42 U.S.C. § 9613(f)(1) (emphasis added). The courts have held consistently that section 9613 must be used by parties who are themselves potentially responsible parties. See, New Castle County v. Halliburton, 111 F.3d 1116, 1120 (3d Cir.1997); Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir.1996); United States v. Colorado & Eastern R.R. Co., 50 F.3d 1530, 1536 (10th Cir.1995); United Technologies Corp. v. Browning-Ferris Indus., Inc., 33 F.3d 96, 99 (1st Cir.1994); Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d 761, 764 (7th Cir.1994); Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 672 (5th Cir.1989). As the case before the court involves entirely potentially responsible parties, such parties must seek contribution under section 9613. The opinion below is reversed and the case is remanded. REVERSED AND REMANDED . Both bronze and brass are copper alloys, usually made with tin or zinc. Bronze is a somewhat stronger alloy. . While CERCLA does not define \"potentially responsible party,\" the courts have understood it to refer to a party who may be covered by the statute at the time that said party is sued under the statute. See, e.g., OHM Remediation Servs. v. Evans Cooperage Co., Inc., 116 F.3d 1574, 1582 (5th Cir. 1997); Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir.1996). . This section also provides that the definitions of \"disposal\" and \"hazardous waste” may be found in SWDA. However, as such definitions are not at issue in the instant case, the court restricts its analysis to the term \"treatment.” . Under section 9613, liability is allocated among other potentially responsible parties and the potentially responsible plaintiff \"using such equitable factors as the court determines are appropriate.” 42 U.S.C. § 9613(f)(1). See also Rumpke of Indiana,[supra,] 107 F.3d at 1240 (section 9613 allocates fault among potentially responsible persons); Colorado & Eastern, [supra,] 50 F.3d at 1536 & n." }, { "docid": "3711403", "title": "", "text": "Scrap Iron & Metal Corp., 153 F.3d 344, 356 (6th Cir.1998); Sun Co. v. Browning-Ferris, Inc., 124 F.3d 1187, 1190-91 (10th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1045, 140 L.Ed.2d 110 (1998); Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298, 1301 (9th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 2340, 141 L.Ed.2d 711 (1998); New Castle County v. Halliburton NUS Corp., 111 F.3d 1116, 1120 (3d Cir.1997); Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir.1996); United Technologies Corp. v. Browning-Ferris Industries, Inc., 33 F.3d 96, 101-03 (1st Cir.1994). The central difference between a cost recovery action under § 107 and a contribution action under § 113 is that in a § 107 action, a party can impose joint and several liability for all its cleanup costs upon the defendant. A potentially responsible person within the meaning of § 107 is, however, presumptively liable for some portion of those costs, and therefore the only recovery it could properly seek would be partial recovery. A claim for partial recovery of CERCLA costs will generally be indistinguishable from claim for contribution, and thus courts have held that as a general rule any claim for damages made by a potentially responsible person — even a claim ostensibly made under § 107 — is considered a contribution claim under § 113. See Pneumo Abex, 142 F.3d at 776; Pinal Creek, 118 F.3d at 1301; New Castle, 111 F.3d at 1122; Redwing Carriers, 94 F.3d at 1496. Axel does not suggest that we should reject this well-established rule, and circuit precedent does not permit us to do so. Axel does attempt to escape the force of this rule, however, by arguing that it qualifies as an “innocent party” with respect to some of the contamination at the property and that it therefore can maintain a cost recovery action despite its status as a potentially responsible person. Only a few circuits have recognized an “innocent party” exception of this kind, and all but one of those have done so in dicta, rejecting the applicability of any exception on" }, { "docid": "16486386", "title": "", "text": "materials that a third party spilled onto its property or that migrated there from adjacent lands” might, as a private party, have a direct cost recovery action under § 107(a)); United Technologies, 33 F.3d at 100. Like our sister courts, we believe that § 107(a)(4)(B) retains this role. See New Castle County v. Halliburton NUS Corp., 111 F.3d 1116, 1125 (3d Cir.1997). The fact, however, that a direct action might be brought under § 107(a) does not open the door for a PRP to bring an action for contribution under that same section. Indeed, the fact that § 113(f)(1) specifically permits an action for contribution to be brought “in the absence of a civil action under ... section [107]” reenforces our conclusion that Congress intended § 113 to be the sole means for seeking contribution — at whatever time in the cleanup process the party, seeking contribution, decides to pursue it. We rely therefore on CERCLA’s plain meaning to hold that § 113(f) replaces the judicially created cause of action under § 107(a)(4)(B) to the extent that a party seeks contribution. See Halliburton NUS Corp., 111 F.3d 1116 (3d Cir.1997); Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir.1996); United States v. Colorado & Eastern Railroad Co., 50 F.3d 1530, 1534-36 (10th Cir.1995); United Technologies Corp., 33 F.3d at 101-03; Akzo, 30 F.3d at 764-65; Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 672 (5th Cir.1989). Having reached this determination, we will proceed to the next step in our analysis: whether Conrail’s § 107(a)(4)(B) claim falls within § 113(f)’s ambit. As its plain language indicates, § 113(f) is concerned with contribution. Although “contribution” is nowhere defined within CERCLA, it is a term with a familiar and readily acceptable meaning. Black’s Law Dictionary defines “contribution” as the recovery of “portional shares of judgment from other joint tort-feasors whose negligence contributed to the injury and who were also liable to the plaintiff.... The sharing of a loss or payment among several^] [t]he act of any one or several of a number of co-debtors, co-sureties, etc., in reimbursing one" }, { "docid": "23657462", "title": "", "text": "up a site was still restricted to seeking contribution); Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir.1996) (“To bring a cost recovery action based solely on § 107(a), Redwing would have to be an innocent party.”); Akzo Coatings Inc. v. Aigner Corp., 30 F.3d 761, 764 (7th Cir.1994) (precluding PRP from seeking cost recovery claim and noting that action in which party liable for some of the site contamination sought costs from other liable parties was the “quintessential claim for contribution”); cf. Rumpke of Indiana, Inc., v. Cummins Engine Company, Inc., 107 F.3d 1235 (7th Cir.1997) (allowing cost recovery claim by “innocent” PRP who had not contributed to site contamination). While the Fifth and Eighth Circuits have not directly confronted the issue, they too have indicated that PRPs are limited to actions for contribution. See Control Data Corp. v. S.C.S.C. Corp., 53 F.3d 930, 936 (8th Cir.1995); Amoco Oil v. Borden, Inc., 889 F.2d at 672. Accordingly, we address our own reading of the statute with these leading circuit decisions as persuasive background. C. Before this court, the plaintiffs argue that the plain language of § 107, which authorizes the recovery of “necessary costs by any other person,” 42 U.S.C. § 9607(a)(4)(B) (underline added), allows joint and several cost recovery actions by PRPs because it does not limit persons to “innocent” persons, but simply any other persons regardless of culpability. Plaintiffs argue that the section unequivocally grants standing to any persons who have incurred necessary response costs, and that nothing in CERCLA indicates that only innocent persons fall within the definition of “any other persons.” Thus, the plaintiffs assert that the test for determining whether a party may seek joint and several cost recovery under CERCLA does not rest on whether a party is liable or potentially liable, but rather depends only on whether a party has incurred necessary costs of response. The government responds by asserting that CERCLA does not provide two separate and distinct causes of actions, but that the two sections, § 107(a) and § 113(f) work in conjunction. It argues that an" }, { "docid": "14892619", "title": "", "text": "CERCLA contribution are governed by federal law. Section 113(f), 42 U.S.C. § 9613(f)(1), the CERCLA contribution provision, provides expressly that actions under it are to be governed by federal law, with the federal court to “allocate response costs among liable parties using such equitable factors as the court determines are appropriate.” There is a savings provision in CERCLA, 42 U.S.C. § 9652(d), but the plaintiffs’ claims in this case are based exclusively on the federal contribution provision, and not on state law. An earlier Sixth Circuit case had tossed off a casual dictum that contribution liability under CERCLA is several, not joint, Centerior Service Co. v. Acme Scrap Iron & Metal Corp., 153 F.3d 344, 348 (6th Cir.1998), but the dictum is defunct after Carter-Jones. A similar dictum in Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298, 1303 (9th Cir.1997), is, when read in context, limited to cases in which potentially responsible parties are suing under a provision of CERCLA, § 107(a), 42 U.S.C. § 9607(a), that imposes automatic joint liability on defendants; the cases hold that the parties’ rights are nevertheless subject to allocation under section 113(f), which does not include that automatic feature. See id. at 1306; Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d 761, 764 (7th Cir.1994); Centerior Service Co. v. Acme Scrap Iron & Metal Corp., supra, 153 F.3d at 349-53. Joint liability thus is optional, rather than unavailable. In traditional common law, when two or more persons inflict an indivisible injury each is fully liable for the injury. That is, the plaintiff can if he wants sue one of the tortfeasors for the entire damages and let the other go, and the one who is sued has no remedy against the one who got off scot-free. CERCLA modifies the traditional common law rule (as many other statutes do and as many state courts have done by decisions modifying the common law) by allowing one liable party to sue another for contribution. It does not follow that if, as in this case, contribution is sought from more than one party, the defendants cannot" }, { "docid": "15063940", "title": "", "text": "may be recovered from a covered person under CERCLA. “Covered persons” are commonly referred to as “potentially responsible parties” or “PRPs.” See, e.g., In re Hemingway Transport, Inc., 993 F.2d 915, 931 (1st Cir.1993). As the section relates to this case, it provides that “covered persons” (PRPs) shall be liable for “any other necessary costs of response incurred by any other person consistent with the national contingency plan.” 42 U.S.C. § 9607(a)(4)(B) (emphasis added). Liability imposed in a § 107(a) action is strict, joint and several for all response costs associated with hazardous waste cleanup at a site. See Colorado & Eastern, 50 F.3d at 1535; Sun Co., Inc. v. Browning-Ferris, Inc., 124 F.3d 1187, 1190 (10th Cir.1997). Fault or culpability is irrelevant under CERCLA’s statutory scheme. See United States v. Township of Brighton, 153 F.3d 307, 330 (6th Cir.1998). A defendant who is shown to be a PRP in a § 107(a) action can escape joint and several liability (and have costs apportioned amongst PRPs) only if the harm is divisible, which is rarely the case and which is not claimed to be the case here. See Sun, 124 F.3d at 1190. As originally enacted, CERCLA included only § 107’s joint and several recovery scheme and left a PRP singled out in a cost recovery action without a statutory means to apportion response costs among other covered persons. See Sun, 124 F.3d at 1190. Courts responded by recognizing an implicit right to contribution between PRPs. See id. The statutory right to contribution currently provided for by CERC-LA was embraced by Congress with SARA’s enactment of § 113(f), whose objective was to “clarif[y]” and “confirm[]” the previously, judicially-recognized right of a PRP to contribution for CERCLA costs. See Colorado & Eastern, 50 F.3d at 1535. Section 113(f) provides that “the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate.” 42 U.S.C. § 9613(f)(1). Since SARA’s enactment, the Tenth Circuit has sought to clarify the interaction between § 107 and § 113. See Sun Company, 124 F.3d at 1188; Bancamerica Commercial Corp." }, { "docid": "3711402", "title": "", "text": "from the statute’s strict liability scheme is, however, mitigated by the availability of contribution actions and division of damages. See United States v. Township of Brighton, 153 F.3d 307, 313 (6th Cir.1998); Monsanto, 858 F.2d at 171-72. Thus, we reject Axel’s contention that it can only be held liable for cleanup costs incurred due to substances deposited at the property during its tenure. Axel is a person potentially responsible for cleanup costs under § 107. B. Axel principally argues that even if it is a potentially responsible person, it should be allowed to bring a § 107 action because it is an “innocent” party with respect to a portion of the site. W-e find this argument to be unpersuasive too. Every circuit that has addressed the question, including this one, has held that parties such as Axel who are potentially responsible for cleanup costs under § 107 cannot bring § 107 cost recovery actions; rather, such parties “must seek contribution” under § 113. Pneumo Abex, 142 F.3d at 776; see Centerior Serv. Co. v. Acme Scrap Iron & Metal Corp., 153 F.3d 344, 356 (6th Cir.1998); Sun Co. v. Browning-Ferris, Inc., 124 F.3d 1187, 1190-91 (10th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1045, 140 L.Ed.2d 110 (1998); Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298, 1301 (9th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 2340, 141 L.Ed.2d 711 (1998); New Castle County v. Halliburton NUS Corp., 111 F.3d 1116, 1120 (3d Cir.1997); Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir.1996); United Technologies Corp. v. Browning-Ferris Industries, Inc., 33 F.3d 96, 101-03 (1st Cir.1994). The central difference between a cost recovery action under § 107 and a contribution action under § 113 is that in a § 107 action, a party can impose joint and several liability for all its cleanup costs upon the defendant. A potentially responsible person within the meaning of § 107 is, however, presumptively liable for some portion of those costs, and therefore the only recovery it could properly seek would be partial recovery. A claim for partial" }, { "docid": "16867163", "title": "", "text": "and explicitly made the City’s contractual liability contingent on DER reimbursement. Blasland also sought that money, however, in its CERCLA claim against the City. The district court found that the pay-when-paid clause also prevented Blasland from recovering the $110,000 under CERCLA. According to the district court, the contractual pay-when-paid clause provided the City with a valid defense from CERCLA liability to Blasland to the extent that the City did not receive funding from D.E.R. for that work. We disagree. To understand our reasoning, it is necessary to understand the CERCLA liability scheme. CERCLA provides two possible avenues for a party to recover monies it spends cleaning up a polluted site. One is a suit for direct cost recovery based on section 107(a) of the statute. 42 U.S.C. § 9607. Direct cost recovery is available only to so-called “innocent parties,” that is, “[p]arties who are not themselves liable or potentially liable for response costs under § 107(a) of CERCLA....” Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1513 (11th Cir.1996). In most instances, the only “innocent party” is the government agency that is forced to cleanup the land: “the typical section 107(a) action is brought by a governmental plaintiff that has expended taxpayer dollars in cleaning up a facility.” Id. It “is possible that a private party may qualify as an ‘innocent’ plaintiff enabling it to bring a cost recovery action based on Section 107(a) alone,” id., but, in practice, it is rare. Kaufman and Broad-South Bay v. Unisys Corp., 868 F.Supp. 1212, 1216 (N.D.Cal.1994) (“a CERCLA plaintiff, other than the government, will rarely be ‘innocent’ and thus permitted to sue under [section 107]”). But see OHM Remediation Services v. Evans Cooperage Co., 116 F.3d 1574, 1581-82 (5th Cir.1997) (allowing a private contractor to proceed as a plaintiff under section 107(a)). In this case, the district court concluded after the bench trial of the CERCLA claims that Blasland was an “innocent party” entitled to bring a direct cost recovery action. The City has not contested that conclusion on appeal, so we will assume for the purpose of reviewing the district" }, { "docid": "6505681", "title": "", "text": "therefore, that Akzo's claim was governed solely by the contribution action § 113(f). In other words, when two parties who both injured the property have a dispute about who pays how much — a derivative liability, apportionment dispute — the statute directs them to § 113(f) and only to § 113(f). Decisions in this area have not been notable for their clarity. See generally Ann Alexander, “Standing under Superfund §§ 107 and 113: Avoiding the Error of the Blind Man and the Elephant,” 10 BNA Toxics L. Rep. No. 6, at 155 (July 12,1995). The other courts of appeals that have considered the problem have agreed with our conclusion that claims properly characterized as those for contribution may normally be brought only under § 118(f). See, e.g., Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir.1996); United States v. Colorado & Eastern R.R. Co., 50 F.3d 1530, 1534-36 (10th Cir.1995); United Technologies Corp. v. Browning-Ferns Industries, 33 F.3d 96, 101-03 (1st Cir.1994), cert. denied, — U.S. —, 115 S.Ct. 1176, 130 L.Ed.2d 1128 (1995); Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 672 (5th Cir.1989). These cases, like Akzo, all involved PRPs who themselves contributed to part of the problem. Also like Akzo, at least some of these courts have acknowledged that a class of eases might remain in which a PRP might sue under § 107(a). See Redwing Carriers, 94 F.3d at 1496; United Technologies, 33 F.3d at 99 n. 8. As our Akzo decision implied, we see nothing in the language of § 107(a) that would make it unavailable to a party suing to recover for direct injury to its own land, under circumstances where it is not trying to apportion costs (i.e., where it is seeking to recover on a direct liability theory, rather than trying to divide up its own liability for someone else’s injuries among other potentially responsible parties). It is true that liability under § 107(a) is joint and several, and § 113(f) exists for the express purpose of allocating fault among PRPs. See Town of Munster, Ind. v. Sherwin-Williams," }, { "docid": "14892618", "title": "", "text": "groundwater — then he would be deemed the operator, jointly with his companies, of the site itself. E.g., Control Data Corp. v. S.C.S.C. Corp., 53 F.3d 930, 937 (8th Cir.1995); Witco Corp. v. Beekhuis, 38 F.3d 682, 692 (3d Cir.1994); FMC Corp. v. Aero Industries, Inc., 998 F.2d 842, 846 (10th Cir.1993); United States v. Northeastern Pharmaceutical & Chemical Co., supra, 810 F.2d at 743. Unfortunately the district court did not consider this possibility, although urged to do so by the plaintiffs, and so a remand is necessary to determine Ter Maat’s status. It is also clear we think that CERCLA does not preclude the imposition of joint as distinct from several liability in a suit for contribution. This is, or at least should be considered, a case of first impression at the appellate level. Carter-Jones Lumber Co. v. Dixie Distributing Co., supra, 166 F.3d at 847-48, does hold that CERCLA permits joint liability in a contribution suit, but on the unsatisfactory ground that state law so required, when it is plain that actions for CERCLA contribution are governed by federal law. Section 113(f), 42 U.S.C. § 9613(f)(1), the CERCLA contribution provision, provides expressly that actions under it are to be governed by federal law, with the federal court to “allocate response costs among liable parties using such equitable factors as the court determines are appropriate.” There is a savings provision in CERCLA, 42 U.S.C. § 9652(d), but the plaintiffs’ claims in this case are based exclusively on the federal contribution provision, and not on state law. An earlier Sixth Circuit case had tossed off a casual dictum that contribution liability under CERCLA is several, not joint, Centerior Service Co. v. Acme Scrap Iron & Metal Corp., 153 F.3d 344, 348 (6th Cir.1998), but the dictum is defunct after Carter-Jones. A similar dictum in Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298, 1303 (9th Cir.1997), is, when read in context, limited to cases in which potentially responsible parties are suing under a provision of CERCLA, § 107(a), 42 U.S.C. § 9607(a), that imposes automatic joint liability on defendants;" }, { "docid": "23657461", "title": "", "text": "513 U.S. 1183, 115 S.Ct. 1176, 130 L.Ed.2d 1128 (1995) (finding that in using the conventional meaning of contribution, the plaintiffs who were by their own admission liable parties, were in effect asserting claims that must be classified as an action for contribution); New Castle County, 111 F.3d at 1122 (noting that every circuit that had addressed the issue had found similarly and finding § 113 “provide[d] potentially responsible persons with the appropriate vehicle for ... recovery”); Colorado & Eastern Railroad, 50 F.3d at 1536 (finding that any claim that would reapportion costs between PRPs “is the quintessential claim for contribution” and “[wjhatever label [the PRP] may wish to use, its claim remains one by and between jointly and severally liable parties for an appropriate division of the payrnent one of them has been compelled to make,” and thus is controlled by § 113(f)); Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298 (9th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 2340, 141 L.Ed.2d 711 (1998) (finding that PRP who had voluntarily cleaned up a site was still restricted to seeking contribution); Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir.1996) (“To bring a cost recovery action based solely on § 107(a), Redwing would have to be an innocent party.”); Akzo Coatings Inc. v. Aigner Corp., 30 F.3d 761, 764 (7th Cir.1994) (precluding PRP from seeking cost recovery claim and noting that action in which party liable for some of the site contamination sought costs from other liable parties was the “quintessential claim for contribution”); cf. Rumpke of Indiana, Inc., v. Cummins Engine Company, Inc., 107 F.3d 1235 (7th Cir.1997) (allowing cost recovery claim by “innocent” PRP who had not contributed to site contamination). While the Fifth and Eighth Circuits have not directly confronted the issue, they too have indicated that PRPs are limited to actions for contribution. See Control Data Corp. v. S.C.S.C. Corp., 53 F.3d 930, 936 (8th Cir.1995); Amoco Oil v. Borden, Inc., 889 F.2d at 672. Accordingly, we address our own reading of the statute with these leading circuit decisions as" }, { "docid": "22985951", "title": "", "text": "response costs from others similarly situated since it is a joint tortfeasor — and not an innocent party — that ultimately must bear its pro rata share of cleanup costs under § 107(a). To bring a derivative action to recoup the portion of costs exceeding a potentially responsible person’s equitable share of the overall liability, however, is a quintessential claim for contribution, where a party seeks to apportion liability for an injury for which it is also directly liable. See Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d 761, 764 (7th Cir.1994) (referring to a contribution claim as one “by and between jointly and severally liable parties for an appropriate division of the payment one of them has been compelled to make”); In re “Agent Orange\" Prod. Liab. Litig., 818 F.2d 204, 207 (2d Cir.1987) (“Contribution is the proportionate sharing of liability among tortfeasors.”) (citing Ingham v. Eastern Air Lines, Inc., 373 F.2d 227, 240 n. 12 (2d Cir.1967)); Restatement (Second) of Torts § 886A (1979). CERCLA § 113(f) plainly governs such contribution actions. See , 42 U.S.C. § 9613(f)(1) (permitting “any person” to seek contribution from “any other person” potentially liable under CERCLA § 107); see also H.R.Rep. No. 99-253(1), at 79 (1985), reprinted in 1986 U.S.C.C.A.N. 2835, 2861 (enunciating that a principal goal in passing CERC-LA § 113 was to “clarif[y] and confírm[ ] the right of a person held jointly and severally liable under CERCLA to seek contribution from other potentially liable parties, when the person believes that it has assumed a share of the cleanup or cost that may be greater than its equitable share under the circumstances.”). Our decision today to limit the recovery of a potentially responsible person to contribution under § 113(f) not only is in keeping with the holdings of other Circuits, see Pneumo Abex Corp. v. High Point, Thomasville & Denton R.R. Co., 142 F.3d 769, 776 (4th Cir.1998); New Castle County v. Halliburton NUS Corp., 111 F.3d 1116, 1120 (3d Cir.1997); Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir.1996); United States v. Colorado & Eastern R." }, { "docid": "11327506", "title": "", "text": "principle that a potentially responsible party cannot bring an action under Section 107(a). However, Dow misstates that alleged principle, and as will be discussed later, that principle does not apply in the present case. Most actions under Section 107(a) are “brought by innocent parties that have undertaken cleanups (say, the federal, state or local government)” and are seeking complete indemnity, Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1513 (11th Cir.1996), while most potentially responsible parties only “seek contribution rather than complete indemnity” and thus proceed under Section 113(f)(1), United Tech., 33 F.3d at 100. “Although it possible that a private party may qualify as an innocent plaintiff’ and “bring a cost recovery action based on [Section] 107(a) alone, the typical [Section] 107(a) action is brought by a governmental plaintiff that has expended taxpayer dollars in cleaning up a facility.” Redwing, 94 F.3d at 1513. Conversely, most potentially responsible parties do not “spontaneously initiate[ ] a cleanup without governmental prodding,” so most actions brought by potentially responsible parties typically occur only during or after that potentially responsible party is subject to a government-initiated CERCLA action, placing such actions squarely within the ambits of Section 113(f)(1). United Tech., 33 F.3d at 99 n. 8. Thus, while most Section 107(a) claims are brought by innocent parties and most Section 113(f) claims are brought by potentially responsible parties, that does not mean potentially responsible parties are barred from bringing claims under Section 107(a), as Dow asserts. Dow’s assertion is reasonable though, as most cases where courts have been called to clarify whether a potentially responsible party’s claim falls under Section 107(a) or Section 113(f) have held that the potentially responsible party’s claim falls under Section 113(f), not Section 107(a). See Bedford Affiliates v. Sills, 156 F.3d 416 (2d Cir.1998); Centerior Serv. Co. v. Acme Scrap Iron & Metal Corp., 153 F.3d 344 (6th Cir.1998); Pneumo Abex Corp. v. High Point, 142 F.3d 769. (4th Cir.1998); Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298 (9th Cir.1997); New Castle County v. Halliburton NUS Corp., 111 F.3d 1116 (3d Cir.1997); Redwing, 94 F.3d" } ]

[ { "docid": "23016351", "title": "", "text": "spoken with Dr. Blundell about Salley’s improved condition, examined the medical records of Salley’s first admission, and concluded that continued hospitalization was not medically necessary. Id. We held that: [Although DuPont followed the prescribed procedures, it abused its discretion in relying upon the Schlegel and Dr. Ahluwalia recommendation to terminate [Salley’s] benefits. Because they chose to follow Dr. Blundell’s diagnosis, Schlegel and Dr. Ah-luwalia were required, absent independent inquiry, to follow all his advice, not just part of it. If they decided to deviate from his diagnosis, they were required to investigate further the medical necessity of inpatient hospitalization. Whether this investigation included an examination of [Salley] or an analysis of hospital records depended on the particulars of each case. At the very least, however, administrators relying on hospital records obviously must review the most recent records. The case administrator and the physician conceded at trial that they did not do so. Id. at 1015-16 (emphasis added). In this ease, MetLife investigated Sweatman’s condition and analyzed all of her hospital records. When Sweatman submitted additional records after Dr. Blendonhy’s review, MetLife sought another opinion from UMAC regard ing whether her records supported the physical limitations found by her treating physicians. Furthermore, MetLife did not rely on Sweatman’s physicians’ diagnoses only to ignore their advised treatment. Rather, Met-Life denied Sweatman’s claim for disability benefits based on the opinions of Drs. Dwyer and Blendonhy disagreeing with those of Sweatman’s physicians. Finally, we note that Salley involved a determination of “medical necessity” and not a claim for disability benefits. Sweatman also argues that because she received a percentage of her salary under Commercial Union’s “salary continuation plan,” she is entitled to a presumption of total disability, and that MetLife did not rebut this presumption with evidence of a change in her condition. Sweatman cites no authority for such a rule, and we see no need to create one in this case. Furthermore, there is no evidence in the record that payments under the salary continuation plan depend on a finding of total disability. . The parties stipulated at trial that a beneficiary is" } ]

[ { "docid": "21950470", "title": "", "text": "a treating physician’s evaluation.” Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834, 123 S.Ct. 1965, 155 L.Ed.2d 1034 (2003). Indeed, numerous courts have upheld administrators’ decisions where the administrator chose to rely upon medical opinions from doctors other than treating physicians, even from doctors selected by the administrator to review the claim. See, e.g., Chandler v. Hartford Life, 178 Fed.Appx. 365, 369-70, 2006 WL 1209363, at *4 (5th Cir.2006); Vercher v. Alexander & Alexander, Inc., 379 F.3d 222, 231-33 (5th Cir.2004); Dubose v. Prudential Ins. Co., 85 Fed.Appx. 371, 372 (5th Cir.2003); Sweatman v. Comm’l Union Ins. Co., 39 F.3d 594, 602-03 (5th Cir.1994); Noble v. Ingalls Shipbuilding, 2006 WL 839519, at *4 (S.D.Miss. Mar.29, 2006). Plaintiff argues that Dr. Ferrante and Hartford ignored Dr. Fillingane’s assertion that on his initial exam Ms. Dowdy was experiencing pain at 14 of the 18 tender points, and that Ms. Dowdy had been previously diagnosed with fibromyal-gia at the Hattiesburg Clinic. Plaintiff further argues that the failure to obtain her medical records from the Hattiesburg Clinic “is unprofessional and evidence of bias on the part of Dr. Ferrante and the Hartford.” However, as noted by Dr. Ferrante as well as by Dr. Kazda, there was a lack of objective physical findings in the record showing that plaintiff was disabled by a physical condition. As Dr. Fillingane explained to both doctors, plaintiffs diagnosis of fibromyalgia was made by a rheumatologist at Hattiesburg Clinic, and Dr. Fillingane merely agreed with that diagnosis. However, that initial diagnosis was not a part of the record before Hartford. As for the failure to obtain Ms. Dowdy’s medical records from the Hatties-burg Clinic, this does not establish that Hartford abused its discretion. In CNA, plaintiff argued that the administrator (his insurance company) abused its discretion by failing to make a good faith effort to obtain his medical records. The court rejected that argument, stating that “it is not the administrator’s burden to prove that it conducted a reasonable investigation but rather it is the claimant’s duty to provide the administrator with evidence he considers pertinent to" }, { "docid": "22770902", "title": "", "text": "they fall short of the substantial medical evidence required to establish a disability listed in or equal to those appearing in appendix l. We agree with the ALJ that Dr. Hunt’s conclusory letter was not substantiated by medical evidence relevant to the period in question. The ALJ also pointed out that Dr. Hunt’s retrospective conclusions of February 12, 1992 and his functional assessment of January 31, 1991 could not properly rely upon medical examinations after April of 1988 to determine disability because the medical reports show that the intervening car accident aggravated claimant’s condition. In fact, Dr. Hunt’s assessments were made after the second automobile accident had occurred which also aggravated her lower back. Additionally, Dr. Hunt’s retrospective conclusion that claimant was totally disabled by October 23,1986 contradicts his own contemporaneous finding in 1986 that claimant was only “temporarily disabled” and needed only “a program of conservative care.” In light of the facts that claimant’s condition improved during the two months preceding Dr. Hunt’s characterization of claimant as “temporarily disabled,” and that the functional assessments indicating disability were prepared on January 31, 1991, after the two exacerbating automobile accidents, the ALJ’s conclusion is supported by substantial evidence in the record and the ALJ gave clear and convincing reasons why she disregarded Dr. Hunt’s conclusion that the claimant was disabled. II The ALJ did not err in discounting claimant’s testimony of excess pain as not credible. No one challenges the fact that the claimant had some pain caused by documented medical diagnoses. The issue is whether the ALJ erroneously rejected the existence of excess pain. Pain is subjective in both existence and degree. Fair v. Bowen, 885 F.2d 597, 601 (9th Cir.1989). Yet despite the inability to measure it objectively, it can have “severe debilitating effects” — even to the point of disabling a person who does not meet or equal the impairments listed in Appendix 1 and who would not objectively be expected to experience pain to the degree subjectively expressed. 20 C.F.R. § 404.1545(e) (“pain or other symptoms may cause a limitation of function beyond ... the anatomical, physiological" }, { "docid": "13120730", "title": "", "text": "reconsideration of the final appeal by the Plan Administrator.... Plaintiff has indicated that she intends to undertake certain neurological/orthopedic evaluations which she plans to submit to the Plan Administrator for this final determination reconsideration.” Thus Dr. Michael Bucci, a neurosurgeon and the third doctor to examine Evans in person, met with her in April 2006. He found “joint deformity ... significantly painful to touch,” “joint swelling,” “diffuse [spinal] tenderness,” “difficulty with toe and heel walking,” and in sum, severe rheumatoid arthritis and se vere spinal stenosis: “I concur with her rheumatologist that the lady is permanently and totally disabled at this time.” Even at this stage, however, the medical opinion was not univocal. Eaton forwarded Evans’s file to an independent medical reviewer, Dr. Trangle, who took issue with Dr. Bucci’s report and concluded that Evans was not disabled. Dr. Trangle found that, as of “the relevant date of 5/31/04 ... review of the records indicates that she had barely detectable elevated rheumatoid factor markers.” And “[i]n regards to her lower back,” the MRI scans and other records from 2003 and 2004 indicate “some spinal stenosis and some radiculopathy,” but “it was mild in nature.” In July 2006, Eaton rejected Evans’s remanded appeal, stating that the records given to Dr. Bucci were incomplete; that Dr. Bucci incorrectly focused on Evans’s current medical condition (“I concur ... that the lady is permanently and totally disabled at this time”) rather than her condition when benefits were cut off in 2004; and that his view conflicted with Dr. Trangle’s. Litigation resumed, and the parties agreed to have the court resolve the matter on the basis of memoranda and a joint stipulation, with relevant documents attached. The district court’s opinion of October 2006, after reciting the abuse of discretion standard of review, examined the evidence on both sides in great detail. Most important to the district court, “the only physicians who physically examined Evans ... concluded that she was totally disabled,” and “[tjhese doctors’ conclusions,” unlike those of the reviewing physicians, “are substantial objective evidence of disability under the Plan.” Evans v. Eaton Corp., C.A." }, { "docid": "19061121", "title": "", "text": "definition of disability has been met is reserved to the [Commissioner]. Rivera v. Secretary of Health & Human Services, 986 F.2d 1407, No. 92-1896, 1993 WL 40850, at *3 (1st Cir. Feb.19,1993) (table decision); accord Shaw v. Secretary of Health and Human Services, 25 F.3d 1037, No. 93-2173, 1994 WL 251000, at *3, (1st Cir. Jun. 9, 1994) (“[w]hen a treating doctor’s opinion is inconsistent with other substantial evidence in the record, the requirement of ‘controlling weight’ does not apply.”) (table decision). In the instant case, Dr. Rich’s opinion was not given “controlling weight” because the Administrative Law Judge found the final statement “conclusory,” “not well-supported by medically acceptable clinical and laboratory techniques,” and “inconsistent with the other substantial evidence on record.” (Tr. 72.) An examination of the medical records from MCI-Cedar Junction and Dr. Venna’s neurological report indicates that these sources do, in fact, differ from Dr. Rich’s conclusion in their assessments of the severity of Guyton’s back pain. Likewise, Dr. Rich’s statements were not backed up by medical records. (Tr. 222, 288.) Thus, the decision not to give Dr. Rich’s report “controlling weight” was supported by substantial evidence. Moreover, the decision not to rely on Dr. Rich’s report was also in accord with the factors listed in § 404.1527(d)(2)-(d)(6). The length of Dr. Rich’s treatment relationship was not substantially different from that of the other physicians who saw Guyton — in fact, it was shorter than the five year relationship Guyton had with the doctors at MCI-Cedar Junction. The nature and extent of Dr. Rich’s treatment relationship was not superior to that of the other physicians, nor was the medical supportability of his findings. The element of specialization is not relevant to Dr. Rich, who — unlike Dr. Ven-na, a neurologist — had no specialization that bore directly on Guyton’s back injury. There were no other relevant factors for the Administrative Law Judge to consider. It is important to note that regardless of what weight an Administrative Law Judge chooses to give a treating source’s opinion, “[a] statement by a medical source that [a claimant is] ‘disabled’ or" }, { "docid": "23077224", "title": "", "text": "evidence of Corry’s disability, as indicated by Liberty’s final denial letter and the reports of Liberty’s three consulting physicians, Dr. Chase, Dr. Brown, and Dr. Porges. Furthermore, we agree with the district court that all three consulting physicians expressed their conclusions that Corry was not disabled on grounds that her claimed disability was not medically verifiable, without offering an opinion on whether Corry’s self-reported symptoms rendered her disabled. Nevertheless, the record shows that Liberty considered Corry’s subjective complaints in finding her not disabled. Importantly, Liberty specifically referred to Corry’s subjective complaints in its final denial letter. For example, Liberty noted Dr. Norris’s 1995 diagnosis of chest pain and fatigue. Similarly, Liberty reported that when Corry visited Dr. Michael Pick-rell in February 1996, “Ms. Corry reported concern with a variety of symptoms, including recurrent left-sided chest discomfort, recurrent rashes, recurrent right knee discomfort.” Liberty also noted an office note by Dr. Norris, dated September 8, 1998, which stated: “Overall, doing better. Feels like Plaquenil is helping her[.] Still fatigued quite easily.” Liberty noted physicians’ outpatient notes from Scott and White Neurology Clinic, which mentioned Corry’s headaches. Liberty summarized October 2001 office notes of another physician, Dr. Gupta, to include “Migraine headaches under excellent control” and “myofascial pain syndrome under excellent control with continued exercise.” Liberty referenced Dr. Brown’s report: “Moreover, neither Dr. Skaggs nor Dr. Hill of neurology were able to explain this claimant’s neurological symptoms.” Finally, Liberty cited extensively from Dr. Porges’s report. There, Liberty asked Dr. Porges whether, among other matters, Corry met “the criteria” for fibromyalgia, an inherently subjective inquiry. See Wolfe, et ah, “The American College of Rheumatology 1990 Criteria for the Classification of Fibromyalgia. Report of the Multicenter Criteria Committee,” 33 Arthritis & Rheumatism 160-72 (1990). Thus, although it is certainly true that Liberty’s references to Corry’s subjective complaints were less prominent than Liberty’s emphasis on the lack of objective medical evidence of a disability, it is clear that Liberty’s analysis considered Corry’s subjective complaints of disability. Furthermore, Liberty accepted Corry’s diagnosis of fibromyalgia without requiring objective evidence to establish the malady. It is further evident" }, { "docid": "815309", "title": "", "text": "determination that plaintiff is capable of light or sedentary work is not supported by substantial evidence and must be reversed. E.g., Kail v. Heckler, 722 F.2d 1496 (9th Cir.1984); Carroll v. Secretary, 705 F.2d 638 (2d Cir.1983); Perez v. Schweiker, 653 F.2d 997 (5th Cir.1981). See also Spencer v. Schweiker, 678 F.2d 42 (5th Cir.1982) (medical opinion on which ALJ relied was ambiguous regarding the plaintiff’s residual functional capacity). In Kail, for example, it appeared that the ALJ had relied primarily on a report by a Dr. Weese, who made a thorough diagnosis of the claimant’s condition but expressed no opinion regarding the claimant’s residual functional capacity. One of the claimant’s treating physicians had rendered an opinion that the claimant was permanently disabled due to his lung condition. Kail, 722 F.2d at 1497. The court held that the ALJ's finding that the claimant was capable of sedentary work was not supported by substantial evidence. In the instant case, Dr. Stoker, Mrs. Predki’s treating physician for four years, has stated his opinion that, given her medical condition, the plaintiff is permanently disabled for any work situation except perhaps clerical work in her home. Neither Dr. Grais, her treating cardiologist, nor Dr. Bacalla, the consulting physician, gave any opinion at all regarding plaintiffs residual functional capacity or whether she is disabled by her impairments. The ALJ, apparently relying on the diagnoses of Dr. Grais and Dr. Bacalla, found that the plaintiffs arthritic symptoms are not a serious impairment and that her heart condition is well controlled by medication. The ALJ further found, based solely on his own interpretation of the plaintiffs medical history, that she retains the capacity for a full range of light work. Because the only medical evidence in the record regarding plaintiffs residual functional capacity is found in Dr. Stoker’s letters, this Court holds that the ALJ’s decision is not supported by substantial evidence. As described above, the ALJ proceeded to the fifth and final step of the sequential evaluation, and found Mrs. Predki disabled by applying the light work grid to her age, education and past employment. Application" }, { "docid": "3119095", "title": "", "text": "opinions were not accompanied by any significant explanation. Compare Mitchell 113 F.3d at 441 (assessing doctor’s reports which discussed in detail elusive nature of chronic fatigue syndrome, difficulty of treating disease, and plaintiffs wide range of symptoms). In fact, Plaintiffs doctors failed to provide more information as to her condition even after Plaintiffs claim had been rejected. Instead, Dr. Reddy submitted almost word-for-word the same, three-sentence, conclusory report. Compare PL’s Exhs. 31, 39. In contrast, MetLife’s independent rheumatology expert submitted a lengthy evaluation, including an explanation as to why Plaintiffs fibromyalgia would not prevent her from performing sedentary work and potential treatment programs. b. MetLife’s Decision Was Not Based on Clearly Erroneous Factual Findings Plaintiffs other major contention is that it was unreasonable for MetLife to ignore the opinions of physicians who had treated her on a regular basis in favor of opinions formed by doctors who only reviewed the case file. Because Plaintiffs treating physicians declared that she was disabled, Plaintiff asserts, MetLife’s denial of Plaintiffs claim was erroneous. Contrary to Plaintiffs contention, both of MetLife’s appointed medical reviewers, Drs. Rodgers and Lieberman, appear to have been independent. Dr. Rodgers, an internist, reviewed Plaintiffs file twice and found Plaintiff had not provided evidence of her disability. His notes indicate that he attempted to call both Dr. Nelson and Dr. O’Connor to discuss Plaintiffs condition on several occasions, but that his calls were not returned. See A.R. at D102-03. MetLife then determined it was appropriate to submit Plaintiffs file to a specialist for review. In his September 26, 1996 report, Dr. Lieberman explained at length the reasons for his belief that Plaintiff was not totally disabled from performing her duties as an administrative secretary. See Pl.’s Exh. 34. He noted several concerns about Plaintiffs medical treatment. In particular, he noted that Dr. Nelson prescribed Medrol dose packs, which are not indicated for the treatment of fibromyal-gia. He also raised concern about Dr. O’Connor’s conclusions. Dr. O’Connor was the only rheumatologist treating Plaintiff. Yet, according to Dr. Lieberman, he used an incorrect measure of the number of tender points for fibromyalgia." }, { "docid": "22879978", "title": "", "text": "allow them to be more productive, gainfully employed, and have a better quality of life.” As the Supreme Court has explained, “courts have no warrant to require administrators automatically to accord special weight to the opinions of a claimant’s physician; nor may courts impose on plan administrators a discrete burden of explanation when they credit reliable evidence that conflicts with a treating physician’s evaluation.” Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834, 123 S.Ct. 1965, 155 L.Ed.2d 1034 (2003). Thus, MetLife acted within its discretion in relying upon the conclusions of its independent consultants’ three reports. Because the three reports provided detailed, substantive analysis of Hobson’s fibromyalgia, we cannot find that MetLife unreasonably failed to consider Hobson’s fibromyalgia. As Hobson’s own treating physician conceded, it is far from clear that Hobson’s medical records demonstrated that she was disabled; rather, we find ample evidence in Hobson’s file to support MetLife’s determination that she failed to make this showing. B. December 200f Termination After Thyroid Cancer Surgery In December 2004, after reinstating Hobson’s LTD benefits when she underwent surgery for thyroid cancer, Met-Life terminated her benefits. Metlife reasonably concluded that Hobson was not disabled, given that the same physician who operated on Hobson’s thyroid cancer also recommended that she return to work in January 2005. Thus, the record substantially supports MetLife’s termination of her LTD benefits, a decision we do not find arbitrary and capricious. C. March 2005 Denial of Initial Appeal After Thirty-Six Month Period In appealing the denial of her benefits claim, Hobson submitted a report from Dr. Subrt diagnosing her with Dercum’s and an updated evaluation from Dr. Sessoms explaining that Hobson’s symptoms included several chronic medical conditions. Substantial evidence in the record supports MetLife’s determination that Hob-son was not disabled due to Dercum’s. As the first consultant, internist Dr. Blair D. Truxal, explained, Dr. Subrt’s letter consisted only of “one brief paragraph,” which Hobson supplemented with “fourteen pages of information on [Dercum’s] disease ... researched from the Internet.” Dr. Truxal concluded that “no diagnostic criteria or physical findings” supported the diagnosis. In fact, he pointed" }, { "docid": "23410929", "title": "", "text": "test tends objectively to demonstrate a serious back condition. See 1 Lawyers’ Medical Cyclopedia §§ 7.10-.11 (1966 & Supp. 1968). The absence of such findings in Dr. Elstein’s report and their presence in Dr. Delahanty’s is simply unexplained. Dr. Delahanty’s report added that leaning to the right and left more than 10 degrees increases her difficulty, that she has “advanced degenera tive arthritic changes” of the L5 lumbar space observable by X-ray, and that she has had continuing treatments including two laminectomies — serious back operations used only as a last resort in herniated disc cases. Dr. Delahanty found Mrs. Miles’s standing capacity to be one hour, her walking capacity one block, her sitting capacity one hour, and her bending capacity “to minimal degree.” In light of the claimant’s past history, the previous finding of disability, and the diagnosis made during the twelve-day stay at the Auburn Memorial Hospital, which occurred within a matter of days after her examination by Dr. Elstein, one has to wonder how the AU could conceivably have relied upon Dr. Elstein’s report to the exclusion of the other evidence. See Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978) (“[t]he expert opinions of a treating physician as to the existence of a disability are binding on the factfinder unless contradicted by substantial evidence to the contrary”); Vitek v. Finch, 438 F.2d 1157, 1160 (4th Cir. 1971) (“the opinion of a claimant’s treating physician is entitled to great weight, for it reflects an expert judgment based on a continuing observation of the patient’s condition over a prolonged period of time”); Selig v. Richardson, 379 F.Supp. 594, 601 (E.D.N.Y.1974) (“once it is determined that an impairment exists, the opinions of the treating physician are entitled to substantially greater weight than the impressions of a doctor who sees the claimant only once . .., especially where [the treating physician] has treated the claimant over a substantial period of time”). In any event, I do not believe that the ALJ’s decision can be accepted without an explanation on his part of the inconsistencies involved here. See Day v." }, { "docid": "54304", "title": "", "text": "therefore, it was an abuse of discretion. 12. In Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834, 123 S.Ct. 1965, 155 L.Ed.2d 1034 (2003), the Supreme Court declined to apply the “treating physician rule” to ERISA-covered plans and held that administrators of such plans are not required to accord special weight to the opinions of a disability claimant’s treating physician. Nevertheless, plan administrators may not “arbitrarily refuse to credit a claimant’s reliable evidence, including the opinions of a treating physician.” Id. Here, Dr. Schroeder rejected Dr. Friedman’s opinion that Burnett was totally disabled, as well as other evidence in the record corroborating that opinion. Dr. Schroeder claimed that there was a dearth of detailed “objective” information and relied upon isolated comments in Dr. Anderson’s February 20 and March 19, 2008 progress reports, including one on March 19 indicating that Burnett had self-reported he was “doing better” that day. In so doing, Dr. Schroeder arbitrarily discounted the opinion of Dr. Friedman, the treating physician whom Burnett saw weekly, and distorted the importance of the progress reports submitted by Dr. Anderson, whom Burnett saw with less frequency. In fact, Dr. Anderson did not disagree with Dr. Friedman’s opinion at all. In later criticism of MetLife’s claims review process, Dr. Anderson pointed out that he saw Burnett only in 15-minute intervals periodically to administer his depression medication and did not purport to offer a disability evaluation in his progress reports. In the February 20 report, Dr. Anderson diagnosed Burnett with “major depressive episode” and increased his depression medication. Likewise, in his March 19 report, Dr. Anderson maintained his diagnosis of “major depressive episode” and continued the Lexapro prescription for Burnett. As such, MetLife and Dr. Schroeder failed to reconcile Burnett’s isolated March 19 self-report of “doing better” with Dr. Anderson’s continuing diagnosis and prescription of depression medication and his opinion that Burnett was disabled from returning to work. 13. In evaluating the administrative record, the Court also considers the unique nature of psychiatric disabilities, which often involve subjective complaints. For example, in using the MMPI-2 test to diagnose Burnett with" }, { "docid": "23077225", "title": "", "text": "from Scott and White Neurology Clinic, which mentioned Corry’s headaches. Liberty summarized October 2001 office notes of another physician, Dr. Gupta, to include “Migraine headaches under excellent control” and “myofascial pain syndrome under excellent control with continued exercise.” Liberty referenced Dr. Brown’s report: “Moreover, neither Dr. Skaggs nor Dr. Hill of neurology were able to explain this claimant’s neurological symptoms.” Finally, Liberty cited extensively from Dr. Porges’s report. There, Liberty asked Dr. Porges whether, among other matters, Corry met “the criteria” for fibromyalgia, an inherently subjective inquiry. See Wolfe, et ah, “The American College of Rheumatology 1990 Criteria for the Classification of Fibromyalgia. Report of the Multicenter Criteria Committee,” 33 Arthritis & Rheumatism 160-72 (1990). Thus, although it is certainly true that Liberty’s references to Corry’s subjective complaints were less prominent than Liberty’s emphasis on the lack of objective medical evidence of a disability, it is clear that Liberty’s analysis considered Corry’s subjective complaints of disability. Furthermore, Liberty accepted Corry’s diagnosis of fibromyalgia without requiring objective evidence to establish the malady. It is further evident from Liberty’s final denial letter that Liberty’s consulting physicians considered Corry’s subjective evidence, a fact reinforced by the physicians’ individual reports. For example, all three consulting physicians agreed that Corry suffered from fibromyalgia, and to reach this conclusion, the physicians would have had to consider subjective evidence of pain. See id. Dr. Chase listed Corry’s subjective complaints in great detail and explained that Corry found it difficult to perform a wide variety of tasks including combing her hair, opening doors, cutting meat, climbing a flight of stairs, and turning a lock. Likewise, Dr. Brown considered Corry’s subjective complaints: The claimant has had complaints of wide spread myofascial pain dating back several years. She was assessed with clinical fibromyalgia only recently by Dr. Chase. Fibromyalgia would explain this claimant’s wide spread musculoskeletal tenderness. However, there is no evidence for musculoskeletal impairment or joint abnormalities (except for the claimant’s right shoulder condition) related to this claimant’s myofascial pain complaints and fibromyalgia. The claimant has had symptoms of fatigue dating back to 1995, initially related to increased stress" }, { "docid": "17524876", "title": "", "text": "considered her “disabled from a standpoint of nerves,” (2) that her past medical history and the subjective testimony of herself and her husband were consistent with her physician’s conclusion, and (3) that the diagnosis of a psychiatrist she consulted was also consistent with a finding of psychological disability. This showing was deemed sufficient to require the Secretary to go forward and produce substantial evidence that the claimant had sufficient residual capacity that she could perform a job in the national economy. Here, the record shows in regard to Lewis (1) that his treating physician, Dr. Kiser, considered him totally disabled when his emotional problem was taken into account, (2) that Lewis’s subjective testimony was consistent with this conclusion, (3) that a psychiatrist, Dr. Kitching, who examined him, expressed the view that he could not do sustained gainful work, and (4) that a psychologist confirmed the existence of “marked conversion reaction overlay and significant hypochondriasis, probably with compensation neurosis aspects . . . The case for Lewis is even stronger than the case for the claimant in Wyatt. The record thus requires the conclusion that Lewis is disabled and entitled to benefits unless there is substantial evidence to show he is not so severely disabled that he cannot perform some job. IV. The Administrative Law Judge found that Lewis could perform the jobs of “salesman, light truck driver, light delivery man and similar sedentary to light work . .” The limitation to “sedentary to light work” was necessary because of the persistence of physical symptoms which, despite Lewis’s prostate surgery, prevented him from performing heavy manual labor. Since there was no direct evidence that Lewis was capable of performing any of the specific enumerated jobs, the Administrative Law Judge’s conclusion must have been based on a finding that Lewis’s mental im pairment was not sufficiently severe as to be totally disabling. We turn to what is asserted to be record support for such a finding. The Secretary relies principally upon three passages from the reports of the two physicians and the psychologist. Dr. Kiser, the treating physician, after discussing Lewis’s emotional" }, { "docid": "23093560", "title": "", "text": "chronic fatigue syndrome though there are clearly no definitive diagnostic tests.” On January 7,1991, Dr. Weinstein, a treating physician, noted that although numerous diagnostic tests had been negative or normal, for two years claimant “has been debilitated by intermittent episodes of severe sore throat, low-grade fevers, intermittent diarrhea, severe headaches and disabling fatigue to the point [where] he can’t work.” Dr. Weinstein “suspect[ed] ... underlying chronic fatigue syndrome.” On February 20,1991, Dr. Weinstein reported that claimant remained “very tired, unable to function very well,” and concluded that “[a]t this time, all is consistent with chronic fatigue.” On April 9, 1991, Dr. Tosches, a treating neurologist, noted that claimant had a long record of complaining about many of the symptoms normally associated with CFS. Dr. Tosches diagnosed “chronic fatigue immunodeficiency syndrome,” saying that the diagnosis was “documented in this patient’s history and medical notes which support the history.” On May 22, 1991, Dr. Weiss, a treating physician, reported that claimant had symptoms of “fatigue, nausea, [diminished] concentration, frequent sore throats, dysuria, and diffuse aches,” and that these symptoms “wax & wane, but [are] always present, at times more severe.” He thought claimant was “[o]ften too fatigued to carry out routine tasks of life.” In addition, two non-examining physicians, after reviewing the medical evidence in the record, both checked boxes on residual functional capacity assessment forms indicating that claimant could lift at least 20 pounds (at least 10 pounds frequently), could stand, sit, or walk six hours, and could climb, balance, stoop, kneel, crouch, and crawl at least occasionally. No other functional limitations were noted. One physician explained this evaluation by stating that “[t]here has been no objective abnormality found to explain the fatigue.” The other physician relied on Dr. Chowdri’s comment “that physical condition does not preclude work.” These two residual functional capacity assessments correspond to a finding that claimant could perform light work. See 20 C.F.R. § 404.1567(b). There is also some psychiatric evidence in the record. On November 27, 1990, Dr. Schembri, a treating psychologist, diagnosed CFS and secondary depression. In a report of a telephone conversation with Dr." }, { "docid": "20109453", "title": "", "text": "employment involving a full range of sedentary to light physical activities. He further opined that her medical records did not support a diagnosis of SLE because they substantiated only two out of the eleven diagnostic criteria set by the American College of Rheumatology for a diagnosis of SLE. He also found that the medical records did not support her reported symptoms of Raynaud’s syndrome. Furthermore, Dr. Haselwood opined that it was not reasonable to conclude that Plaintiffs chronic undifferentiated rheumatic disease “would cause sustained or vocationally debilitating fatigue.”. With respect to Plaintiffs seizure disorder, he found that the records did not document any seizure activity during the time period January 30, 2006 through November 8, 2007 and thus concluded there was no evidence that a seizure disorder impaired Plaintiffs vocational functionality during that same period. Finally, he opined that the medical records did not support the conclusion that “objectively substantiated medical/rheumatologic pathophysiology” was of such severity to prevent Plaintiff from engaging in sedentary work. The Court finds that it was reasonable for Defendant to rely on these consulting physicians in determining that Plaintiffs purported disabling conditions were not as limiting as claimed and that she could perform sedentary work. Defendant was under no obligation to defer to Dr. Welch’s diagnosis of SLE or Raynaud’s syndrome. It is well settled that ERISA does not require plan administrators to “accord special deference to the opinions of treating physicians,” nor does it place “a heightened burden of explanation on administrators when they reject a treating physician’s opinion.” Furthermore, the Court notes that Dr. Welch’s own medical records do not indicate that she ever recommended Plaintiff stop working. Dr. Welch’s November 29, 2005 record merely indicates that Plaintiff informed Dr. Welch that she was planning to take a three month leave of absence from work. The record does not show that Dr. Welch recommended or directed Plaintiff to take such a leave. Moreover, when Dr. Ingram asked Dr. Welch to provide “a brief narrative detailing any specific findings that would support” Plaintiffs limitations from work, Dr. Welch merely responded that Plaintiff had told her" }, { "docid": "12319982", "title": "", "text": "person is entitled to little weight if it contradicts the opinion of the claimant’s treating physician. Id. at 962. However, we need not consider further whether the AU erroneously rejected Dr. Ross’ opinion on the basis of Dr. Cobb’s report. Contrary to Johns’ contention, we find no evidence that the AU reiied upon Dr. Cobb’s report. The AU summarized the medical findings and diagnoses of Drs. Ross, Harrington, Choisser, Reddy, and Fernandez, all of whom examined Johns, but made no reference whatsoever to Dr. Cobb’s report. Although the opinion of a claimant’s examining physician is accorded substantial weight, it is not necessarily dispositive on the issue of disability. See Jones, 810 F.2d at 1005. The opinion of the treating physician regarding disability or inability to work may be discounted if it is unsupported by objective medical evidence or is merely conclusory. See Schnorr v. Bowen, 816 F.2d 578, 582 (11th Cir.1987); 20 C.F.R. § 404.1527. In this case, the ALJ had good cause for not according substantial weight to Dr. Ross’ statements concerning Johns’ inability to continue working because all three statements were conclusory and unsupported by objective medical findings. On March 30, 1981, Dr. Ross reported only that Johns’ “medical problems are somewhat bizarre, but ... certainly incapacitating.” On September 6, 1983, Dr. Ross wrote to Johns’ attorney that the claimant’s polymyalgia rheumatica is a “variable disease and [is] sometimes incapacitating.” In a subsequent letter to Johns’ attorney on March 27, 1984, Dr. Ross merely confirmed the claimant’s diagnosis of polymyalgia rheumatica, noted her reluctance to take prednisone because of its side effects, and concluded that gainful employment for her was no longer possible. These opinions omit any discussion of why the disability makes it impossible for the claimant to be gainfully employed, or the nature or permanence of the disability. Subject to further findings upon remand regarding whether Johns is disabled by pain, we conclude that the evidence supports a finding that the claimant can perform sedentary work, which includes her past relevant work as a payroll clerk. B. Disabling Pain Johns challenges the AU’s rejection of her" }, { "docid": "7711135", "title": "", "text": "from Dr. Kyle. We find that Dr. Kyle’s report is not credible. First, Dr. Kyle’s conclusion is based solely on his review of the letter of Dr. Ryckman and the opinion of the Administrative Law Judge; he did not review or request any other records with respect to the plaintiff nor did he personally examine or speak with the plaintiff at any time. Second, the report is conclusory and does not set forth the factual basis upon which Dr. Kyle’s opinion is founded. Third, there is no evidence in either the letter from Dr. Ryckman or the opinion of the Administrative Law Judge to support Dr. Kyle’s conclusion that the plaintiff was not totally and permanently disabled. We find it incredible that Dr. Kyle could reach such a firm and critical conclusion in light of the documents before him especially in the absence of a personal examination of the plaintiff. His opinion can reasonably be given no more weight than pure speculation. Indeed, as phrased, it sounds more like a legal opinion than a medical one. 9.In making its decision to deny plaintiff disability benefits, the Committee made no further inquiry of plaintiff’s condition other than to review the letter from Dr. Ryckman, the opinion of the Administrative Law Judge, and the letter from Dr. Kyle. The Committee did not speak with Dr. Kyle to determine the basis for his opinion, did not meet with the plaintiff to personally observe his condition, nor did it schedule a personal examination of the plaintiff with a physician. The Committee’s decision to deny plaintiff disability benefits was not supported by substantial evidence. To rely solely upon the conclusory and unexplained opinion of a medical doctor who did not examine the plaintiff, and who had no evidence before him to substantiate his finding that plaintiff was not totally disabled, and to disregard credible contradictory evidence from the plaintiff’s own treating physician is irrational. Dr. Kyle’s report deserved little weight in the Committee’s determination. For analogous reasoning in the social security context, see Millner v. Schweiker, 725 F.2d 243, 245 (4th Cir.1984) (“A report of" }, { "docid": "19203405", "title": "", "text": "medical opinions based on such self reporting are also credible. See e.g., Fair v. Bowen, 885 F.2d 597, 605 (9th Cir.1989) (finding that an opinion of disability “premised to a large extent upon the claimant’s own accounts of his symptoms and limitations” may be disregarded where those complaints have been “properly discounted”). . The LTD Plan provided: “No Benefits shall be paid [if] .... [t]he participant fails to give the Claims Administrator adequate medical proof, upon request, that such Disability exists or continues to exist.” (Ds MSJ, SOF, Ex. 1: LTD Plan, effective January 1, 1999; AR at 44.) The Plan Summary provided that the LTD Plan will not pay benefits ... if you fail to provide satisfactory and objective medical proof that you are disabled. Id., AR at 13. Where there are material differences between a summary plan document and the plan document, courts generally bind ERISA defendant to the more employee-favorable of the two. Banuelos v. Constr. Laborers' Trust Funds, 382 F.3d 897, 904 (9th Cir.2004). See Jordan v. Northrop Grumman Corp., 370 F.3d 869, 877-878 (9th Cir.2003) (discussing impossibility of proving fibromyalgia with objective evidence, and plan may not require that which cannot exist, but may require objective findings to support functional limitations due to fibromyalgia). The MetLife plans are silent regarding evidentiary requirements for functional limitations as distinct from proving disability. . Attending Physician. .The Court notes that on March 25, 2005, Dr. Rouzaud provided an Attending Physicians’s Statement of Disability which specifically provided “objective findings” for migraines as: \"photophobia, guarding ROM of head, neck.” (AR at 422.) . The reverse was true: Dr. David reported that she complained of migraines, which he described as sounding more like tension headaches. (Ds MSJ, SOF at 40; AR at 158-159.) . The Court notes that Dr. Rouzaud had detailed discussions of the Plaintiff's case with MetLife's IPCs in December, March and June. . It appears that the Plaintiff saw Dr. Rouzaud around June of 2005, and Dr. Rouzaud ordered x-rays of her spine because she was having back pain. At that time Dr. Rouzaud described Plaintiff as having" }, { "docid": "22879977", "title": "", "text": "additional information to support Hob-son’s claim for benefits. In fact, he conceded that there was “insufficient data” to determine her ability to work. Hobson specifically challenges on appeal MetLife’s reliance on Dr. Nesta’s 2004 report because Metlife “failed to consider fibromyalgia in his review.” Upon evaluating Hobson’s “final diagnosis of fibromyalgia,” Dr. Nesta’s report again concluded that fibromyalgia “does not usually preclude an individual from working.” Two years earlier, however, Dr. Nesta explained why he concluded that Hobson was not disabled due to her fibromyalgia: Hob-son had no “documented trigger point tenderness” which is normally part of a fibromyalgia diagnosis, no “hard evidence ... substantiate® her disability from a rheu matologie viewpoint,” and her neurological examinations were “normal.” Moreover, Dr. Lieberman, another independent consultant who evaluated Hobson’s record in 2001, opined that there wasn’t “any substantial global or objective evidence to support” the opinion that Hobson was “unable to perform any occupation because of her fibromyalgia;” instead, Dr. Lieberman stated that “[tjhere certainly are a wide range of treatments available for patients with fibromyalgia to allow them to be more productive, gainfully employed, and have a better quality of life.” As the Supreme Court has explained, “courts have no warrant to require administrators automatically to accord special weight to the opinions of a claimant’s physician; nor may courts impose on plan administrators a discrete burden of explanation when they credit reliable evidence that conflicts with a treating physician’s evaluation.” Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834, 123 S.Ct. 1965, 155 L.Ed.2d 1034 (2003). Thus, MetLife acted within its discretion in relying upon the conclusions of its independent consultants’ three reports. Because the three reports provided detailed, substantive analysis of Hobson’s fibromyalgia, we cannot find that MetLife unreasonably failed to consider Hobson’s fibromyalgia. As Hobson’s own treating physician conceded, it is far from clear that Hobson’s medical records demonstrated that she was disabled; rather, we find ample evidence in Hobson’s file to support MetLife’s determination that she failed to make this showing. B. December 200f Termination After Thyroid Cancer Surgery In December 2004, after reinstating Hobson’s LTD" }, { "docid": "23452138", "title": "", "text": "not contest that, if proven, the claimant’s loss of her physical and mental health due to nervous causes and emotional strain resulting from her repeated surgeries would entitle her to disability benefits. 42 U.S.C. § 1382c(a)(3)(C); Goodley v. Harris, 608 F.2d 234 (5th Cir. 1979); Murphy v. Gardner, 379 F.2d 1 (8th Cir. 1967); McCormick, Social Security Claims and Procedures, § 412 (2d ed. 1978). Our review of the record satisfies us that no substantial evidence supports the ALJ’s finding that the claimant was not seriously disabled from performing her customary work because of her severe mental depression and nervous condition. The only evidence in the record on which the ALJ could have relied in reaching this conclusion is the report of Dr. Wilkers, which is in turn based on that of Dr. Wills. This court has recently noted that the reports of physicians who did not examine the claimant, taken alone, “would not be substantial evidence on which to base an administrative decision.” Johnson v. Harris, 612 F.2d 993, 998 (5th Cir. 1980). See also Simms v. Weinberger, 377 F.Supp. 321 (M.D.Fla.1974). Dr. Wilkers is the only physician to explicitly discount the disabling effect of Mrs. Strickland’s mental maladies. The doctor’s opinion does not form the substantial evidentiary basis for the judge’s conclusion, nor may it acquire bootstrapped authority from the sources it relies upon. From the record, it appears that this doctor had access to some or all of the Dr. Gillikin exhibits and to Dr. Wills’ letter. Dr. Gillikin, however, repeatedly characterized Mrs. Strickland as disabled, at least in part for melancholic depression and chronic depressive reaction. Dr. Wills also noted Mrs. Strickland’s depression, finding it “difficult to evaluate,” and additionally burdening his report with the caveat that “I am unable to evaluate the significance of the complaints given in this history.” Thus, aside from Johnson’s discount of the conclusory report by a non-examining physician, we note the lack of evidentiary weight to be accorded to Dr. Wilkers’ report under circumstances in which this non-examining physician (medical specialty unknown) ventures a conclusion based on a report by" }, { "docid": "5584505", "title": "", "text": "A Clinical Specialist reviewed an office visit note from Dr. Prater dated 06/27/2007 and a neurology consult dated 04/17/2007, Dr. Turel. There was no documentation of medical findings to support a functional impairment that would prevent you from performing the duties of your occpation [sic] from Dr. Prater or Dr. Turel. The exam findings were essentially negative by both physicians. Both physicians report that you have reported fatigue, joint pain, joint stiffness as well as symptoms of neuralgia, however, there were no documented medical findings to support your self reported symptoms. In fact, Dr. Turel indicated: “examination actually looked fairly stable. While she had symptoms of diffuse discomfort of dyesthesia [sic], I could not account for them.” His exam was negative. Dr. Prater did not provide any exam findings, but indicated the exam findings had not changed. There were no significant abnormal findings found in any of the medical documentation provided by Dr. Prater. STD Admin. R. 580, 588, 595. Finally, after conducting the administrative appeal, MetLife notified Ms. Novick that its termination decision was upheld on appeal in the February 12, 2008 letter. This letter again included the definition of “disability” under the STD benefits plan, and stated that “[t]he previous determina tion was upheld upon appeal review for the following reasons:” (1) the STD benefits were “terminated due to medical [information] not supporting disability under the Plan”; (2) all exams and tests on file were negative or not correlated clinically; (3) “According to [Dr. Payne], the medical information on file does not validate functional limitations. [Dr. Payne did] not disagree that Ms. Novick may have chronic Lyme disease. However, [Dr. Payne] concludes that there are no clinical findings that would evidence restrictions and limitations on Ms. Novick’s activities”; and (4) “[w]hile we do not dispute Ms. Novick’s diagnosis, the available information does not demonstrate that she was unable to perform the essential duties of her occupation as a business systems analyst as of June 9, 2007. Therefore, she does not satisfy the plan’s definition of disability. As such, the previous claim determination was appropriate, and remains in effect.”" } ]

[ { "docid": "10682651", "title": "", "text": "in this court, seeking declaratory and injunctive relief under FOIA and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 553, 702, 704, and 706. The parties each moved for summary judgment on the nine claims brought in the suit and this court proceeded to rule. Plaintiffs prevailed on eight of their nine claims: (1) “Track 3” of USCIS’s multi-track policy violated the Settlement Agreement; (2) USCIS’s denial of Hajro’s request for expedited processing violated the Settlement Agreement; (3) The timing of USCIS’s response to Hajro with the requested material violated FOIA Section 552(a)(6)(A) and 6 C.F.R. § 5.6(b); (4) USCIS’s failure to notify Hajro of the “unusual circumstances” preventing USCIS from processing his FOIA request within the 20-day statutory limit violated 6 C.F.R. § 5.5(c)(1); (5) USCIS had a pattern or practice of failing to comply with the timing requirements set forth by FOIA Sections 552(a)(6)(A), (B), (C); (6) USCIS unlawfully withheld the information requested by Hajro in violation of FOIA Section 551 et seq. and 555(b); (7) USCIS’s withholding of nonexempt material violated Hajro’s due process rights because of the consequential interference with his ability to adequately appeal his naturalization denial; and (8) USCIS’s adoption of the “Track 3” policy without notice and comment rulemaking procedure violated Section 553 of the APA. Holder prevailed on his summary judgment motion, and all claims against him were dismissed. The motions of Napolitano, Cejka, and Melville were granted as to Plaintiffs’ FOIA claims. USCIS was granted summary judgment for Plaintiffs’ ninth claim that the “Track 3” policy violated the Fifth Amendment guarantee of equal protection. The court later issued a permanent injunction mandating that Defendants comply with their obligations under FOIA, specifically 5 U.S.C. § 552(a)(6), and under the Settlement Agreement. Defendants have appealed to the Ninth Circuit Court of Appeals, where the case is currently pending. While awaiting the Ninth Circuit’s decision, Plaintiffs’ counsel has moved to recover attorneys’ fees for his representation in this court. II. LEGAL STANDARDS FOIA authorizes the court to “assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case" } ]

[ { "docid": "20759027", "title": "", "text": "that opinion, the Court extended its holdings from an August 2010 opinion on the parties’ motions for summary judgment, see DL v. District of Columbia, 730 F.Supp.2d 84 (D.D.C.2010), and found defendants liable for violations of the Individuals with Disabilities Education Act (“IDEA”), Section 504 of the Rehabilitation Act, and related provisions of local law from 2008 until April 6, 2011. See DL, 845 F.Supp.2d at 19-24. The Court also entered a permanent injunction, requiring defendants, inter alia, to enact various reforms, to meet certain performance benchmarks, and to comply with certain reporting requirements. Id. at 24-30. In December 2011, defendants appealed the Court’s Findings of Fact and Conclusions of Law, as well as other orders, to the U.S. Court of Appeals for the District of Columbia Circuit. Defs.’ Notice of Appeal [304] 1, Dec. 15, 2011. Defendants then filed a Motion for Reconsideration in this . Court pursuant to Federal Rule of Civil Procedure 54(b), Defs.’ Mot. Reconsideration [307] 1, Jan. 12, 2012, while also persuading the Court of Appeals to hold the appeal in abeyance pending this Court’s resolution of the post-judgment Motion. See Order of USCA [319] 1, Mar. 20, 2012. Defendants acknowledge in their Motion some uncertainty, given the pending appeal, concerning whether this Court has jurisdiction. See Defs.’ Mot. Reconsideration [307] 1 n. 1. Meanwhile, plaintiffs, engaged in negotiations with defendants over proposed modifications to the Court’s injunction, requested a delay in the Court’s resolution of defendants’ Motion for Reconsideration while those negotiations proceeded. See, e.g., Pis.’ Praecipe [320] 1, Apr. 5, 2012. Finally, on April 19, 2012, plaintiffs filed a Motion [321] for Leave to File a SurReply Brief, attaching a Sur-Reply that would inform the Court of the issues resolved by the parties’ negotiations while addressing arguments raised by defendants for the first time in their Reply to plaintiffs’ Opposition to defendants’ Motion for Reconsideration. See Pis.’ Mot. Leave [321] 2, Apr. 19, 2012. Since plaintiffs’ attached Sur-Reply addresses issues raised by defendants for the first time in their Reply, and because the Court finds that the Sur-Reply is helpful to the Court’s" }, { "docid": "16522327", "title": "", "text": "GRANTED in favor of Plaintiffs on Plaintiffs’ claims for declaratory relief that when responding to requests from aliens and/or their attorneys for a copy of an alien registration file in the absence of a pending removal hearing, Defendant USCIS has engaged in a pattern and practice of violating FOIA’s time limit provisions; IT IS FURTHER ORDERED that partial summary judgment is GRANTED in favor of Plaintiffs on Plaintiffs’ claims for injunctive relief requiring USCIS to: 1) provide a copy of a requestor’s file within the twenty-day time limit mandated by 5 U.S.C. § 552(a)(6)(A); and 2) give the written notice mandated by 5 U.S.C. § 552(a)(6)(B) if an extension of time is needed due to “unusual circumstances.” No later than December 18, 2011, the parties shall submit either a stipulated form of injunction, or their respective proposed forms of injunction; IT IS FURTHER ORDERED that partial summary judgment is GRANTED in favor of Hajro on his claim that USCIS is withholding non-exempt documents; IT IS FURTHER ORDERED that partial summary judgment is GRANTED in favor of Plaintiffs on Plaintiffs’ claim that USCIS’s Track 3 FOIA processing policy and regulation violates the Settlement Agreement and was promulgated in violation of the APA and FOIA; and IT IS FURTHER ORDERED that partial summary judgment is GRANTED in favor of Defendants on Plaintiffs’ equal protection claims. I. FACTUAL AND PROCEDURAL BACKGROUND A. Plaintiff Hajro Mirsad Hajro is a lawful permanent resident of the United States who applied for naturalization in 2003. In October 2007, Hajro received notice that his application had been denied based on evidence in his alien registration file that allegedly revealed false testimony regarding his foreign military service. On or about November 9, 2007, Hajro filed an appeal pursuant to 8 U.S.C. § 1447(a) and requested a review hearing before an immigration officer. Hajro also filed a request under FOIA with the Department of Homeland Security (“DHS”), USCIS, National Records Center, seeking a copy of his alien registration file. Hajro requested expedited processing of his FOIA request under the terms of a 1992 national settlement agreement (“Settlement Agreement”). The Settlement" }, { "docid": "16522375", "title": "", "text": "This injunction takes effect immediately, without prejudice to the government’s right to pursue a stay pending appeal. 4) USCIS shall issue a written notice to the USCIS National Records Center describing the terms of this permanent injunction and instructing the National Records Center regarding compliance with the terms of this injunction. IT IS SO ORDERED. ORDER ENTERING JUDGMENT On October 13, 2011, the court issued an order granting-in-part and denying-in-part cross-motions for summary judgment brought by Plaintiffs Mirsad Hajro (“Hajro”) and James R. Mayock (“Mayock”) and by Defendant United States Citizenship and Immigration Services (“USCIS”), to gether with Defendants Eric Holder (“Holder”), Janet Napolitano (“Napolitano”), T. Diane Cejka (“Cejka”), and Rosemary Melville (“Melville”). The summary judgment order disposed of all claims in the case and ordered the parties to submit either a stipulated form of injunction, or their respective forms of injunction, with respect to Plaintiffs’ claims for injunctive relief. Before the parties submitted any proposed forms of injunction, Defendants filed a notice of appeal to the United States Court of Appeals for the Ninth Circuit “to the extent that the district court granted summary judgment to plaintiffs and failed to grant summary judgment to defendants.” In light of the summary judgment order, the Clerk of the Court is directed to close this matter and enter judgment pursuant to Rule 58 of the Fed. R. Civ. P. as follows. Judgment shall be entered in favor of Plaintiffs as to the first, second, third, fourth, fifth, seventh, and ninth causes of action. Judgment further shall be entered in favor of Plaintiffs as to the sixth cause of action with respect to Defendants’ withholding of information under FOIA and the 1992 Settlement Agreement. Judgment also shall be entered in favor of Defendants as to the sixth cause of action with respect to Plaintiffs’ arbitrary and capricious claim under the APA. Judgment further shall be entered in favor of Defendants as to the eighth cause of action, and to Defendant Holder on all causes of action, and to Defendants Napolitano, Cejka, and Melville on the third, fourth, fifth, and sixth causes of action" }, { "docid": "18244775", "title": "", "text": "counterclaim seeks declaratory and injunctive relief, costs, and attorney fees, on the basis that the LP Trademark is invalid and unenforceable and that the LP Trademark is not infringed by the PRS Singlecut. On July 2, 2004, the district court issued an order addressing a motion in limine filed by Gibson and several matters raised in PRS’s pretrial brief, including a demand by PRS for a jury trial on the amount of profits to be disgorged. In the course of ruling on Gibson’s motion in limine and denying PRS’s jury trial demand, the district court entered a permanent injunction against PRS: This is hereby ORDERED that the Defendant Paul Reed Smith, its partners, employees, agents and all persons in active consent with them are ENJOINED from manufacturing, selling, or distributing, or in any manner[] enabling or aiding others to manufacture, or to sell, or to distribute the PRS Sin-glecut guitar and all versions thereof, including but not limited to their exteri- or shapes and features, the designs of which have been determined to violate Plaintiffs rights to protection under the Lanham Act for its incontestable trademark registration, No. 1,782,606 for Les Paul guitar. Gibson Guitar Corp. v. Paul Reed Smith Guitars, LP, 325 F.Supp.2d 841, 855 (M.D.Tenn.2004) (“Gibson II ”). The district court’s order explicitly reserved decision on all other issues remaining in the case pending a hearing on disgorgement of profits. In this interlocutory appeal, PRS challenges the July 2, 2004 injunction and the January 22, 2004 order granting partial summary judgment to Gibson and denying summary judgment to PRS. II. ANALYSIS A. Jurisdiction The district court had jurisdiction over the underlying action pursuant to the Lanham Act, 15 U.S.C. § 1114. As the district court entered a permanent injunction against PRS, we have jurisdiction to hear this interlocutory appeal pursuant to 28 U.S.C. § 1292(a)(1). Although our jurisdiction arises from PRS’s interlocutory appeal of the permanent injunction entered below, we may also review the district court’s summary judgment rulings because those rulings form the basis for the district court’s decision to order injunctive relief. B. Propriety of Granting" }, { "docid": "18244776", "title": "", "text": "rights to protection under the Lanham Act for its incontestable trademark registration, No. 1,782,606 for Les Paul guitar. Gibson Guitar Corp. v. Paul Reed Smith Guitars, LP, 325 F.Supp.2d 841, 855 (M.D.Tenn.2004) (“Gibson II ”). The district court’s order explicitly reserved decision on all other issues remaining in the case pending a hearing on disgorgement of profits. In this interlocutory appeal, PRS challenges the July 2, 2004 injunction and the January 22, 2004 order granting partial summary judgment to Gibson and denying summary judgment to PRS. II. ANALYSIS A. Jurisdiction The district court had jurisdiction over the underlying action pursuant to the Lanham Act, 15 U.S.C. § 1114. As the district court entered a permanent injunction against PRS, we have jurisdiction to hear this interlocutory appeal pursuant to 28 U.S.C. § 1292(a)(1). Although our jurisdiction arises from PRS’s interlocutory appeal of the permanent injunction entered below, we may also review the district court’s summary judgment rulings because those rulings form the basis for the district court’s decision to order injunctive relief. B. Propriety of Granting Injunctive Relief In determining whether a district court has properly granted a permanent injunction, we review factual findings for clear error, legal conclusions de novo, and the scope of injunctive relief for abuse of discretion. Worldwide Basketball and Sport Tours, Inc. v. Nat’l Collegiate Athletic Ass’n, 388 F.3d 955, 958 (6th Cir.2004). A district court normally must hold an evidentiary hearing prior to issuing a permanent injunction. Moltan Co. v. Eagle-Picher Indus., Inc., 55 F.3d 1171, 1174 (6th Cir.1995). In this ease, it is unclear from the parties’ submissions whether the district court held an evidentiary hearing prior to issuing the permanent injunction. However, because an evidentiary hearing is not required when “no factual issues remain for trial,” id., the district court’s decision to grant a permanent injunction without such a hearing could still be upheld if the entry of summary judgment in favor of Gibson and against PRS was proper. Accordingly, resolution of PRS’s interlocutory appeal from the permanent injunction requires us to determine whether summary judgment was properly granted to Gibson. We conclude" }, { "docid": "17666745", "title": "", "text": "July 14, 1993, Westbrooke served Christian with a notice of garnishment proceedings. On August 23, 1993, Christian initiated an adversary proceeding in bankruptcy court seeking: (1) injunctive relief from West-brooke’s attempts to execute the default judgment; (2) a determination that the post-petition condominium assessments had been discharged by Christian’s earlier § 727 discharge; and (3) damages, including attorney’s fees. Both Christian and Westbrooke filed motions for summary judgment. The bankruptcy court (1) granted Christian’s motion for summary judgment, determining that the postpetition condominium assessments were discharged in the Chapter 7 bankruptcy; (2) denied Westbrooke’s motion for summary judgment; (3) issued a permanent injunction prohibiting Westbrooke from attempting to collect the postpetition condominium assessments; and (4) reserved ruling on Christian’s request for damages and attorney’s fees pending an evidentiary hearing. Westbrooke appealed the bankruptcy court’s decision to the district court, which affirmed the decision of the bankruptcy court. This appeal ensued. On appeal, Westbrooke argues that the district court and bankruptcy court erred in determining that Affeldt’s § 727 discharge encompasses postpetition condominium assessments. Af-feldt argues that we have no jurisdiction to hear this appeal because it is not from a final judgment. II. Affeldt argues that the panel has no jurisdiction under 28 U.S.C. § 158(d) (1988) to hear this appeal because the bankruptcy court’s order was not final. Although the bankruptcy court’s order was not final, the bankruptcy court issued a permanent injunction along with its grant of summary judgment in favor of Affeldt. Under 28 U.S.C. § 1292(a)(1) (1988), we have jurisdiction over orders granting such injunctions. In Connecticut Nat'l Bank v. Germain, the Supreme Court held that we may rely on § 1292 as a basis for jurisdiction over such injunctions in bankruptcy proceedings. 503 U.S. 249, 254-56, 112 S.Ct. 1146, 1150, 117 L.Ed.2d 391 (1992). Therefore, since the bankruptcy court issued a permanent injunction against Westbrooke, we have jurisdiction pursuant to § 1292(a)(1). III. The issue raised in this appeal is a question of law. The district court reviewed the bankruptcy court’s conclusions of law de novo. In re Euerle Farms, Inc., 861 F.2d 1089, 1090" }, { "docid": "16522376", "title": "", "text": "Circuit “to the extent that the district court granted summary judgment to plaintiffs and failed to grant summary judgment to defendants.” In light of the summary judgment order, the Clerk of the Court is directed to close this matter and enter judgment pursuant to Rule 58 of the Fed. R. Civ. P. as follows. Judgment shall be entered in favor of Plaintiffs as to the first, second, third, fourth, fifth, seventh, and ninth causes of action. Judgment further shall be entered in favor of Plaintiffs as to the sixth cause of action with respect to Defendants’ withholding of information under FOIA and the 1992 Settlement Agreement. Judgment also shall be entered in favor of Defendants as to the sixth cause of action with respect to Plaintiffs’ arbitrary and capricious claim under the APA. Judgment further shall be entered in favor of Defendants as to the eighth cause of action, and to Defendant Holder on all causes of action, and to Defendants Napolitano, Cejka, and Melville on the third, fourth, fifth, and sixth causes of action under FOIA. Judgment also shall include the order of injunction against USCIS that has issued concurrently with this order. This Judgment shall constitute a final judgment in this case. In light of the pending appeal by USCIS of the court’s summary judgment order, the court will retain jurisdiction only to consider claims regarding compliance with this order and any requests related to attorney fee awards and costs of suit. IT IS SO ORDERED. . Plaintiffs originally sued Holder's predecessor as Attorney General Michael B. Mukasey. See Docket No. 1. . Plaintiffs originally sued Napolitano's predecessor as Secretary of Homeland Security, Michael Chertoff. See id. . Hajro has since applied for and been denied naturalization a second time on the same grounds. See Docket No. 51 at 1-2. . USCIS is an agency within the DHS. See Docket No. 1 ¶ 3. . See Docket No. 11, Ex. A. .See id. ¶ 42, Ex. J. . See id. ¶¶ 44, 45 Exs. K, L. Hajro separately appealed the denial for expedited processing pursuant to 6 C.F.R." }, { "docid": "22911301", "title": "", "text": "December 15, 1980, the district court, 507 F.Supp. 1128, sua sponte dismissed all of Wood’s claims against all 253 defendants. The district court relied primarily on the running of the statute of limitations and on its lack of in personam jurisdiction over most of the defendants. The district court issued an amended version of its opinion on April 24, 1981. On May 4, 1981 Wood submitted what he entitled “Plaintiff’s Amended Motion [Rules 59(e) and 60(b)] to Alter or Amend Judgment and for leave to Amend Complaint [Rule 15(a)].” This motion contained several arguments but focused on elaborating Wood’s claim that reproduction by microfilm companies hired by the publisher defendants was a continuous infringement sufficient to toll the statute of limitations. On June 1, the district court entered an order denying a variety of motions by Wood, including those contained in the May 4 document. On that same date, the dis trict court also partially granted a motion by certain defendants for permanent injunctive relief from further legal action by Wood. Wood initiated appeal No. 81-5422, his appeal from the April 24 amended judgment that dismissed his lawsuit, by filing a notice of appeal on May 26. Wood initiated appeal No. 81-5562, his appeal from the permanent injunction, by filing an amended notice of appeal on July 1. TIMELINESS OF APPEAL FROM SUA SPONTE DISMISSAL In a civil action where neither the United States nor its officer or agent is a party, Federal Rule of Appellate Procedure 4(a) requires that notice of appeal be filed within 30 days after entry of judgment. Appellant Wood did not file his notice of appeal until May 26, 32 days after the amended judgment was entered on April 24. Nevertheless, because the final day of this 30-day appeals period fell on a Sunday and the next day was Memorial Day, Wood’s appeal from the summary judgment dismissing his claims is timely. Fed.R.Civ.P. 6. We now turn to the merits of Wood’s appeal. SUMMARY JUDGMENT A trial court properly enters summary judgment if, viewing the evidence in the light most favorable to the adverse party," }, { "docid": "21583084", "title": "", "text": "the summary judgment motion with a permission to refile after an appropriate interval for discovery. The County appealed the October 16, 1986 grant of preliminary injunction and then moved to stay that order. On December 28, 1989, the Cone group refiled their summary judgment motion. On January 19, 1990, this Court denied the motion for stay of the preliminary injunction pending appeal without prejudice and subject to renewal. On February 13, 1990, the district court granted the Cone group’s summary judgment motion, ruling that the County had had adequate time to complete discovery. 730 F.Supp. 1568. On March 1, 1990, the district court entered a final order making the preliminary injunction permanent. The County filed notice of appeal from both the February 13 and March 1 orders. Those appeals have been consolidated, and this Court has granted a stay of the permanent injunction pending resolution of this appeal. 3. Present Appeal On appeal, the parties have raised the following issues: whether the district court erred in granting summary judgment in favor of the Cone group on the grounds that the MBE law violated the equal protection clause, whether the district court erred in finding that the Cone group suffered irreparable injury sufficient to justify the grant of the preliminary injunction, and whether the permanent injunction is over-broad and should be modified to exclude federally funded projects. Because we find that the district court erred in granting summary judgment in favor of the Cone group, we do not reach the second and third issues. II. ANALYSIS A. Introduction In rejecting the Hillsborough County MBE law, the district court relied on City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989). Croson involved a Richmond, Virginia MBE plan which required prime contractors awarded city construction contracts to subcontract at least thirty percent of the dollar amount of each contract to an MBE. Contractor Bonn wished to bid on a city project to install plumbing in the city jail. Seventy-five percent of the job involved provision of fixtures. Thus, in order to meet the thirty percent'" }, { "docid": "14881353", "title": "", "text": "Souza’s 1-140 petition after discovering that the plaintiffs’ attorney had engaged in fraudulent conduct in another case. In February, 2009, after plaintiffs’ adjustment application had been pending for nearly six years, USCIS issued a Notice of Intent to Revoke (“NOIR”) the underlying 1-140 petition, upon which the Form 1 — 485 depended. It issued a second NOIR later that month. Both documents stated that there was no proof that the labor certification process was properly followed. USCIS issued a Notice of Revocation the following month and a second Notice of Revocation in May, 2009 based on the second NOIR. Plaintiffs and Century House appealed both of those Notices and both were denied for lack of standing because USCIS decreed that only the affected party, Creative Catering, was entitled to appeal. In October, 2009, USCIS denied plaintiffs’ Form 1-485 based on the 1-140 petition revocations. In November, 2012, USCIS reopened the matter sua sponte and issued a third NOIR. No one responded to that NOIR. USCIS thus revoked plaintiffs’ 1-140 petition for a fourth time and certified the matter for review to the Administrative Appeals Office. In June, 2013, the AAO affirmed the revocation on the grounds that 1) Century House lacked standing to appeal the administrative decision and 2) the materials submitted in support of the petition were deficient. C. Procedural history Plaintiffs initiated this lawsuit in February, 2012 and filed an amended complaint several months later. They filed a second amended complaint in December, 2012 claiming that the defendants violated the Administrative Procedures Act, the Immigration and Nationality Act and the plaintiffs’ rights to due process. The parties filed cross-motions for summary judgment in July, 2014. II. Cross-Motions for Summary Judgment The parties assert that they are each entitled to judgment as a matter of law. Plaintiffs contend that the government violated statutory authority and their rights to due process because it 1) failed to take De Souza’s “ported” 1-140 petition approval into account when insisting that Century House lacked standing, 2) exaggerated perceived inconsistencies in De Souza’s employment history and 3) tolerated “extraordinary delay” in adjudicating the visa" }, { "docid": "6843569", "title": "", "text": "to enforce any restricted-earnings coach salary limitations against the named plaintiffs, and it further enjoined the NCAA from “reenacting the compensation limitations embodied in [the REC Rule].” The NCAA appeals the permanent injunction. II. Summary Judgment Review Although this is an interlocutory appeal, we have appellate jurisdiction pursuant to 28 U.S.C. § 1292(a)(1) (1993) because the NCAA seeks review of an order granting a permanent injunction. In reviewing the injunction, we may also address the summary judgment order that served as the district court’s principal legal basis for granting the injunction because the district court’s ruling on summary judgment was inextricably intertwined with its ruling granting a permanent injunction. See Tri-State Generation & Transmission Ass’n, Inc. v. Shoshone River Power, Inc., 874 F.2d 1346, 1351 (10th Cir.1989); see also Moore v. City of Wynnewood, 57 F.3d 924, 930 (10th Cir.1995) (court may consider pendent jurisdiction appeals beyond those authorized for interlocutory appeal if the issues are inextricably intertwined) (citing Swint v. Chambers County Comm’n, 514 U.S. 35, 50-51, 115 S.Ct. 1203, 1212, 131 L.Ed.2d 60 (1995)). Typically, we review a district court’s grant of an injunction for abuse of discretion. See United States v. Jenks, 22 F.3d 1513, 1519 (10th Cir.1994). However, in this case, the NCAA challenges only that part of the injunction finding that it violated antitrust law. The district court relied on its prior order granting summary judgment for that issue. We review de novo a summary judgment which serves as a basis for an injunction. See id. at 1517. Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. When applying this standard, we examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. If there is no genuine issue of material fact in dispute, then we next determine if the substantive law was correctly applied by the district court." }, { "docid": "16522373", "title": "", "text": "rational basis for the claimed, discriminatory classification. Thus, the court will grant summary judgment in favor of Defendants on Plaintiffs’ eighth cause of action. IV. CONCLUSION Based on the foregoing, the court finds that partial summary judgment in Plaintiffs’ favor is proper as to the first, second, third, fourth, fifth, sixth (except as noted below), seventh, and ninth causes of action. Summary judgment in favor of Defendants is proper as to the eighth cause of action, as well as to the sixth cause of action with respect to Plaintiffs’ claim that withholding of the non-exempt information was arbitrary and capricious under the APA. Summary judgment is also proper in favor of Holder as to all causes of action, and in favor of Napolitano, Cejka, and Melville as to the third, fourth, fifth, and sixth causes of action. IT IS SO ORDERED. ORDER OF PERMANENT INJUNCTION Having determined Defendant United States Citizenship and Immigration Services (“USCIS”) to be in violation of certain provisions of the Freedom of Information Act (“FOIA”) for the reasons set forth in the court’s order of October 13, 2011 on cross-motions for summary judgment, including FOIA’s timing provisions as set forth in 5 U.S.C. § 552(a)(6), the court hereby orders that: 1)USCIS shall comply with the requirements set forth in 5 U.S.C.§ 552(a)(6)(A) and (B). a)USCIS shall provide a copy of a requestor’s alien registration file within the twenty-business-day time limit mandated by 5 U.S.C. § 552(a)(6)(A)®. b) USCIS shall make a determination with respect to any FOIA appeal within the twenty-business-day time limit mandated by 5 U.S.C. § 552(a)(6)(A)(ii). c) USCIS shall issue the written notice mandated by 5 U.S.C. § 552(a)(6)(B) to a requestor if an extension of an additional ten business days is needed due to “unusual circumstances.” This written notice must set forth the unusual circumstances, as defined in 5 U.S.C. § 552(a)(6)(B)(iii) for such extension and setting a new response date. The final response date shall be within 30 business days of the original request date. 2) USCIS shall follow, implement, and execute the terms of the 1992 Mayock Settlement Agreement. 3)" }, { "docid": "12687852", "title": "", "text": "injunction in favor of Doeblers’ Pennsylvania Hybrids, Inc., and the matter will be remanded for further proceedings. . They also own some stock in Farmland. . In addition to selling Partnership's corn seed, Hybrids also appears to have sold com produced by Camerer Farms, non-family growers, and possibly Farmland. . The parties also dispute how much money was spent by Hybrids on marketing, research, and advertising. As such factual disputes are not determinative here, we do not focus on them. . On December 3, 2003, defendants filed an answer along with affirmative defenses and counterclaims, including trademark claims. On that same date, defendants filed a third-party complaint against Jones and Camerer, alleging multiple counts including trademark claims. . On February 12, 2004, this Court affirmed the preliminary injunction in a non-prece-dential opinion. See Doebler’s Pennsylvania Hybrids, Inc. v. Doebler Seeds, LLC, 88 Fed. Appx. 520 (3d Cir.2004). The decision focused on the trade secret issues, concluding that LLC and its employees could not use the plaintiff's trade secrets to compete against Hybrids. . The Court also dismissed the remaining counterclaims and third-party claims. As noted in Part II, infra, our decision addresses only the permanent injunction and underlying grant of summary judgment in favor of Hybrids. . In its appellee's brief, plaintiff inexplicably claims \"there is no permanent injunction currently in effect.” Appellee Br. at 1. This is flatly incorrect. In its order, the District Court granted a permanent injunction to plaintiff, stating that defendants \"are permanently enjoined .... ” A2 (emphasis added); see also A71-72 (entry 210 of docket sheet). Indeed, after being prompted by a letter sent by the Court, appellee backed away from’ its jurisdictional challenge, conceding that \"it does appear that the trial court intended to have a permanent injunction effective upon the issuance of its Order.” Plaintiff Letter of June 9, 2005. However, our appellate jurisdiction is not boundless, and we limit our review to the permanent injunction and underlying grant of summary judgment. . We must also note that we are troubled by plaintiff's failure to provide proper citations to the appendix. Rather than" }, { "docid": "21583083", "title": "", "text": "a substantial likelihood that the Cone group would succeed on the merits under City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989). Without providing any comparative analysis or explanation of its conclusion, the court stated that the Hillsborough County law was identical to the Richmond plan held invalid in Croson, and stated that the County’s defense of its law was a waste of time and resources. Cone Corp., 723 F.Supp. at 678-79. The County filed a motion for clarification requesting that the court modify the injunction to exclude the federally-assisted projects which required the County to operate an MBE program. The court denied that motion on November 17, 1989. 2. Summary Judgment On October 18, 1989, the Cone group moved for summary judgment, based on their claim that there was no proof indicating that the County or prime contractors had discriminated against MBE contractors. The County responded that they needed more time for discovery to produce evidence of racial discrimination. On November 17, 1989 the court denied the summary judgment motion with a permission to refile after an appropriate interval for discovery. The County appealed the October 16, 1986 grant of preliminary injunction and then moved to stay that order. On December 28, 1989, the Cone group refiled their summary judgment motion. On January 19, 1990, this Court denied the motion for stay of the preliminary injunction pending appeal without prejudice and subject to renewal. On February 13, 1990, the district court granted the Cone group’s summary judgment motion, ruling that the County had had adequate time to complete discovery. 730 F.Supp. 1568. On March 1, 1990, the district court entered a final order making the preliminary injunction permanent. The County filed notice of appeal from both the February 13 and March 1 orders. Those appeals have been consolidated, and this Court has granted a stay of the permanent injunction pending resolution of this appeal. 3. Present Appeal On appeal, the parties have raised the following issues: whether the district court erred in granting summary judgment in favor of the Cone group" }, { "docid": "5562737", "title": "", "text": "Plaintiffs’ freedom of expression; and that the ordinance is unconstitutionally overbroad or alternatively includes substantive provisions that would violate the First Amendment if applied to adult-oriented establishments. Plaintiffs sought a declaratory judgment to the effect that the Act and ordinance are unconstitutional. The relief requested was a temporary restraining order barring enforcement of the Act and the ordinance and, ultimately, permanent injunctive relief against enforcement of both. On December 3, 2002, the district court issued a temporary restraining order, by mutual consent of the parties, precluding enforcement of the Act and the ordinance for 90 days, or until the court ruled on the motion for a preliminary injunction. On February 3, 2003, the court granted Defendant State of Tennessee’s motion to intervene to defend the constitutionality of the Act. Plaintiffs filed an amended complaint on June 17, 2003, raising claims that are not at issue in this appeal. During July and August 2003, the parties engaged in discovery. The parties then filed cross-motions for summary judgment, with Plaintiffs renewing their request for permanent injunctions against enforcement of the Act and ordinance. Another temporary restraining order issued on September 2, 2003, by consent of the parties. On October 14, 2003, the court granted Defendants’ motion for summary judgment, finding each of Plaintiffs’ constitutional challenges to the Act and ordinance unpersuasive; judgment was entered on October 20, 2003. Plaintiffs timely filed a notice of appeal on November 13, 2003 and the next day the district court denied their motion for a stay pending appeal. A motions panel of this Court denied Plaintiffs’ motion for a stay of enforcement of the Act and ordinance on March 19, 2004. The Act and ordinance became enforceable on that day, so we may assume Plaintiffs are not operating Sports Club, at least not as an adult-oriented establishment. II. STANDARD OF REVIEW We review a district court’s grant of summary judgment de novo. Kalamazoo Acquisitions, L.L.C. v. Westfield Insurance Co., Inc., 395 F.3d 338, 341 (6th Cir.2005); Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036, 1048 (6th Cir.2001). Summary judgment shall be granted when “the pleadings," }, { "docid": "16522326", "title": "", "text": "AMENDED ORDER 1) GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT HOLDER; 2) GRANTING PARTIAL SUMMARY JUDGMENT IN FAVOR OF OTHER INDIVIDUAL DEFENDANTS; 3) GRANTING PARTIAL SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS; AND 4) GRANTING PARTIAL SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS. PAUL S. GREWAL, United States Magistrate Judge. In this action, Plaintiffs Mirsad Hajro (“Hajro”) and James R. Mayock (“Mayock”) seek declaratory and injunctive relief under the Freedom of Information Act (“FOIA”) and the Administrative Procedure Act (“APA”) for alleged violations by Defendant United States Citizenship and Immigration Services (“USCIS”), together with Defendants Eric Holder (“Holder”), Janet Napolitano (“Napolitano”) T. Diane Cejka (“Cejka”), and Rosemary Melville (“Melville”). Before the court are the parties’ cross-motions for summary judgment on all claims. Having reviewed the briefs, supporting evidence, and applicable law, as discussed herein, IT IS HEREBY ORDERED that summary judgment is GRANTED in favor of Holder; IT IS FURTHER ORDERED that partial summary judgment is GRANTED in favor of Napolitano, Cejka, and Melville on Plaintiffs’ FOIA claims; IT IS FURTHER ORDERED that partial summary judgment is GRANTED in favor of Plaintiffs on Plaintiffs’ claims for declaratory relief that when responding to requests from aliens and/or their attorneys for a copy of an alien registration file in the absence of a pending removal hearing, Defendant USCIS has engaged in a pattern and practice of violating FOIA’s time limit provisions; IT IS FURTHER ORDERED that partial summary judgment is GRANTED in favor of Plaintiffs on Plaintiffs’ claims for injunctive relief requiring USCIS to: 1) provide a copy of a requestor’s file within the twenty-day time limit mandated by 5 U.S.C. § 552(a)(6)(A); and 2) give the written notice mandated by 5 U.S.C. § 552(a)(6)(B) if an extension of time is needed due to “unusual circumstances.” No later than December 18, 2011, the parties shall submit either a stipulated form of injunction, or their respective proposed forms of injunction; IT IS FURTHER ORDERED that partial summary judgment is GRANTED in favor of Hajro on his claim that USCIS is withholding non-exempt documents; IT IS FURTHER ORDERED that partial summary judgment is GRANTED in favor" }, { "docid": "16522374", "title": "", "text": "the court’s order of October 13, 2011 on cross-motions for summary judgment, including FOIA’s timing provisions as set forth in 5 U.S.C. § 552(a)(6), the court hereby orders that: 1)USCIS shall comply with the requirements set forth in 5 U.S.C.§ 552(a)(6)(A) and (B). a)USCIS shall provide a copy of a requestor’s alien registration file within the twenty-business-day time limit mandated by 5 U.S.C. § 552(a)(6)(A)®. b) USCIS shall make a determination with respect to any FOIA appeal within the twenty-business-day time limit mandated by 5 U.S.C. § 552(a)(6)(A)(ii). c) USCIS shall issue the written notice mandated by 5 U.S.C. § 552(a)(6)(B) to a requestor if an extension of an additional ten business days is needed due to “unusual circumstances.” This written notice must set forth the unusual circumstances, as defined in 5 U.S.C. § 552(a)(6)(B)(iii) for such extension and setting a new response date. The final response date shall be within 30 business days of the original request date. 2) USCIS shall follow, implement, and execute the terms of the 1992 Mayock Settlement Agreement. 3) This injunction takes effect immediately, without prejudice to the government’s right to pursue a stay pending appeal. 4) USCIS shall issue a written notice to the USCIS National Records Center describing the terms of this permanent injunction and instructing the National Records Center regarding compliance with the terms of this injunction. IT IS SO ORDERED. ORDER ENTERING JUDGMENT On October 13, 2011, the court issued an order granting-in-part and denying-in-part cross-motions for summary judgment brought by Plaintiffs Mirsad Hajro (“Hajro”) and James R. Mayock (“Mayock”) and by Defendant United States Citizenship and Immigration Services (“USCIS”), to gether with Defendants Eric Holder (“Holder”), Janet Napolitano (“Napolitano”), T. Diane Cejka (“Cejka”), and Rosemary Melville (“Melville”). The summary judgment order disposed of all claims in the case and ordered the parties to submit either a stipulated form of injunction, or their respective forms of injunction, with respect to Plaintiffs’ claims for injunctive relief. Before the parties submitted any proposed forms of injunction, Defendants filed a notice of appeal to the United States Court of Appeals for the Ninth" }, { "docid": "23464885", "title": "", "text": "amend the judgment to include injunctive relief to protect the Triangle Design logo. The district court ruled on the post-trial motions on March 13, 1998. The court denied Carley’s motion for a new trial. The court also made minor amendments to its findings of fact and conclusions of law. As requested by Rorion, the district court entered a permanent injunction prohibiting Carley from using any logo similar to Ro-rion’s Triangle Design logo. The district court also awarded Rorion $620,000 in attorneys’ fees. Finally, the district court entered an amended judgment, in which it (1) entered judgment in favor of Rorion on his claim of infringement of the Triangle Design logo; (2) entered judgment in favor of Carley on Rorion’s claim of infringement of the “Grade Jiu-Jitsu” name; (3) declared that Rorion “do[es] not have a valid service mark for the name GRACIE JIU-JITSU,” as requested by Carley’s motion to amend the judgment; (4) awarded Rorion $108,000 on his Triangle Design logo counterclaim, the amount of Carley’s profits as found by the jury; and (5) confirmed the grant of permanent injunctive relief to Rorion, as requested by Rorion’s motion to amend the judgment. Both sides filed notices of appeal. Car-ley noticed his intent to appeal the portion of the amended judgment relating to the Triangle Design logo and various pretrial rulings (including the summary judgment ruling on Ms cancellation claim). Rorion noticed his intent to appeal the portion of the amended judgment stating that he had no valid service mark in “Gracie Jiu-Jit-su.” On May 12, 1998, Carley filed a motion for an award of attorneys’ fees, based on the amended judgment, for his successful defense against Rorion’s claim of infringement of the “Gracie Jiu-Jitsu” name. Ro-rion opposed the motion. The district court denied Carley’s motion for attorneys’ fees; Carley filed a notice of appeal from that order as well. All three appeals (Carley’s two appeals and Rorion’s cross-appeal) were consolidated by order of this court. Rorion’s cross appeal was dismissed for failure to prosecute. II We must first decide whether the district court erred in refusing to order cancellation of" }, { "docid": "22768343", "title": "", "text": "Dispute On May 31, 1988 plaintiffs served defendants with two notices of deposition requesting information regarding employment, assets and income pursuant to Fed. R.Civ.P. 30 and 34. Claiming privilege under the First, Fourth, Fifth and Fourteenth Amendments, defendants refused to produce any of the requested documents. Plaintiffs moved to compel discovery; defendants cross-moved for a protective order. In an opinion dated August 31, 1988 Judge Ward denied the cross-motion for a protective order, and awarded plaintiffs the fees and costs of the motion in the amount of $16,142.75 to be paid jointly and severally by defendants and their counsel. D. The Merits In November 1988 plaintiffs learned that Operation Rescue had planned demonstrations in front of unspecified clinics in the New York Metropolitan area for the weekend of January 12, 1989. In a November 16 letter to Operation Rescue participants, defendant Terry acknowledged his intention to disobey the district court’s contempt order, and asked, “[w]ill we let this N.Y.C. court intimidate us back into silent cooperation with the killing.... [o]r will we face down this judge’s order ... ?” This threat to continue demonstrations prompted plaintiffs’ December 21, 1988 motion for summary judgment and for an order permanently enjoining Operation Rescue from blockading facilities providing abortion-related services. At the same time, defendants’ motion to dismiss was pending before the district court. In that motion, defendants renewed their argument that plaintiffs and the City, as plaintiff-intervenor, lacked Article III standing and challenged the sufficiency of the plaintiffs’ complaint as to each asserted cause of action. Defendants also asserted that the complaint failed to allege sufficiently grounds for a permanent injunction, and that defendants’ earlier notices of appeal had divested the district court of jurisdiction. After hearing oral argument on the consolidated motions, the district judge on January 10 issued a permanent injunction that again enjoined defendants from blocking access to plaintiffs’ medical facilities. The amount of sanctions was doubled to $50,000 for each successive act in violation of the injunction. In a January 21, 1989 opinion Judge Ward granted plaintiffs’ motion for summary judgment on their common law trespass claim and" }, { "docid": "12486881", "title": "", "text": "sought (“the October 27 Order”). Defendants’ applications to this Court and to the Court of Appeals for a stay pending appeal of the October 27 Order were denied. On December 21, 1988, plaintiffs moved for summary judgment and a permanent injunction upon receiving notice of blockades planned by Operation Rescue in the New York City area from January 12 to 14, 1989. These blockades had been organized in express retaliation for this Court’s October 27 Opinion. 697 F.Supp. 1324. See Exhibit A, annexed to Affirmation of Mary M. Gundrum, filed December 21, 1988 (Letter from Randall Terry, dated November 16, 1988, urging participation in January blockades of “abortion mills” in the New York City area in order to “face down” this Court). On January 6, 1989, the Court heard oral argument on plaintiffs’ motion for summary judgment and defendants’ motion to dismiss and, on January 10, 1989, the Court issued a permanent injunction that again enjoined defendants from blocking access to medical facilities offering abortions and included coercive sanctions of $25,000 per day for violations of the order (the “Permanent Injunction”). The Permanent Injunction was modified from the previous orders to provide that each successive violation of the injunction would result in doubling the civil contempt sanction applicable to the contemnor. On January 20, 1989, the Court issued an opinion granting plaintiffs’ motion for summary judgment on their common law trespass claim and on their 42 U.S.C. § 1985(3) federal cause of action and permanently enjoining Operation Rescue and its participants from blocking ingress into and egress from medical facilities providing abortion related services (“the January 20 Opinion”). Defendants appealed from the various orders entered by this Court. The Court of Appeals, in an Opinion dated September 20, 1989, affirmed this Court’s rulings which, inter alia, (1) enjoined defendants from blocking access to clinics offering abortions, (2) held Terry and Operation Rescue in contempt for violation of the May 4 Order, and (3) imposed discovery sanctions on defendants. 886 F.2d 1339. The ruling regarding payment of the civil contempt sanctions was modified to provide that the coercive penalties for violations" } ]

[ { "docid": "23706772", "title": "", "text": "grand jury investigation is terminated.” 866 F. 2d 1318, 1319, 1321 (1989). While acknowledging that “the freedom of speech afforded by the first amendment is not absolute,” the court concluded that the competing state interests were not sufficiently compelling to warrant the imposition of criminal sanctions on witnesses who revealed the content of their own grand jury testimony. Id., at 1319-1320. In reaching its determination, the court relied principally on our decision in Landmark Communications, Inc. v. Virginia, 435 U. S. 829 (1978), and the fact that the Federal Rule of Criminal Procedure governing grand jury secrecy imposes no such obligation on grand jury witnesses. 866 F. 2d, at 1320. We granted certiorari, 493 U. S. 807 (1989), and now affirm. Historically, the grand jury has served an important role in the administration of criminal justice. Although the English forerunner of the modern grand jury served primarily as a prosecutorial and investigative arm of the Crown and was designed to enhance the government’s authority, by the 17th century the grand jury had developed an equally important function — to safeguard citizens against an overreaching Crown and unfounded accusations. See 1 S. Beale & W. Bryson, Grand Jury Law and Practice § 1:02, pp. 5-8 (1986). The tradition of secrecy surrounding grand jury proceedings evolved, at least partially, as a means of implementing this latter function by ensuring the impartiality of that body. Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U. S. 211, 218-219, n. 9 (1979); Brown, The Witness and Grand Jury Secrecy, 11 Am. J. Crim. Law 169, 170 (1983). Today, grand jury secrecy remains important to safeguard a number of different interests. ‘We consistently have recognized that the proper functioning of our grand jury system depends upon the secrecy of the grand jury proceedings. See, e. g., United States v. Procter & Gamble Co., [356 U. S. 677 (1958)]. In particular, we have noted several distinct interests served by safeguarding the confidentiality of grand jury proceedings. First, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that" } ]

[ { "docid": "3524627", "title": "", "text": "clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.”); Antar, 38 F.3d at 1359-60. This right of access promotes important societal interests including confidence in the judicial system. See, e.g., Press-Enterprise Co. v.Super. Ct., 478 U.S. 1, 11-12, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986); Leucadia, Inc. v. Applied Extrusion Techs., Inc., 998 F.2d 157, 161 (3d Cir.1993). We have extended this right of access to many pre-trial criminal proceedings including pre-trial suppression, due process, and entrapment hearings. United States v. Criden, 675 F.2d 550, 554 (3d Cir.1982). But this right of access is not unlimited. Under certain circumstances the right of public access may be outweighed by countervailing principles. United States v. Smith, 787 F.2d 111, 114 (3d Cir.1986). Among the few limitations to the First Amendment right of access in criminal hearings, none is more important than protecting grand jury secrecy. Douglas Oil Co. of Cal. v. Petrol Stops N.W., 441 U.S. 211, 218, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979). The Supreme Court has held that grand jury proceedings must remain secret noting, [S]everal distinct interests [are] served by safeguarding the confidentiality of grand jury proceedings. First, if prein-dictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appear before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual jurors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule. Douglas Oil Co., 441 U.S. at 218-19, 99 S.Ct. 1667 (internal citations omitted). In United States v. Smith, 123 F.3d 140 (3d Cir.1997), we held the broad secrecy historically afforded to grand jury proceedings" }, { "docid": "17121220", "title": "", "text": "Doe, Inc. I, 481 U.S. 102, 109 n. 5, 107 S.Ct. 1656, 95 L.Ed.2d 94 (1987) (quotation omitted), quoted in In re Grand Jury Investigation (DiLoreto), 903 F.2d 180, 183 (3d Cir.1990); see also Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 219, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979) (describing similar reasons for the courts’ reluctance “to lift unnecessarily the veil of secrecy from the grand jury”). Moreover, the Supreme Court made clear in Dionisio, that saddling a grand jury with minitrials “would assuredly impede its investigation and frustrate the public’s interest in the fair and expeditious administration of the criminal laws.” 410 U.S. at 17, 93 S.Ct. 764. Given the acknowledged need for secrecy in grand jury proceedings, we reject Appellant’s argument that the “unique facts and circumstances in this case,” including the length of time the investigation has been pending and the fact that the nature of the investigation has already been made public in several contexts, required the District Court to order disclosure of the government’s ex parte affidavit. As we have stated, the ex parte affidavit includes excerpts of witness testimony and documents obtained during the investigation, which is ongoing. We conclude that the District Court did not abuse its discretion in denying Appellant and/or his attorney access to this information to protect grand jury secrecy. Our decision is in accord with those of the other federal courts of appeal that have already addressed this precise issue and rejected due process claims made under virtually identical facts. For example, in In re Grand Jury Subpoenas, 144 F.3d 653 (10th Cir.1998), the former president and chief executive officer of a hospital who was among various targets of a grand jury investigation appealed the order denying his motion to quash a grand jury subpoena directed to the hospital’s counsel, with whom he had a personal attorney-client relationship. The Court of Appeals held there was no abuse of discretion or due process violation by the district court’s refusal to disclose the ex parte government affidavit from which it determined that the crime-fraud exception applied. Id. at" }, { "docid": "372461", "title": "", "text": "courtroom deliberately embarrassing other persons when ethical constraints admonish against doing so within. Ad Hoc Committee Report at 6. It was further concerned by lawyers airing matters in the press that are inadmissible at trial. Id. Several policy concerns militate strongly in favor of maintaining the secrecy of grand jury proceedings. Otherwise, targets learning of their possible indictment might flee or tamper with grand jury witnesses. Witnesses would be less willing to appear and testify for fear of reprisal. Not the least important consideration is to protect the good name and reputation of those investigated, but not indicted, by the grand jury. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 219, 99 S.Ct. 1667, 1672, 60 L.Ed.2d 156 (1979). Based upon the sensational public nature of the case and the leaks of grand jury information, the district court found that failure to restrain the trial participants would add “fuel to an already voracious fire of publicity” and create “a real and substantial likelihood that some, if not all, defendants might be deprived of a fair trial.” We are unable to say upon reviewing this record that the findings relied upon by the district court to support that conclusion are clearly erroneous. Consequently, the district court was justified in considering the imposition of a “gag” order on trial participants. IV Consideration of Less Restrictive Alternatives As the district judge properly recognized, before entering an injunction against speech he had to explore whether other available remedies would effectively mitigate the prejudicial publicity. See Nebraska Press, 427 U.S. at 562, 96 S.Ct. at 2804. The mitigating measures, derived from the Supreme Court’s discussion in Sheppard v. Maxwell, 384 U.S. at 358-63, 86 S.Ct. at 1519-22, include change of venue, trial postponement, a searching voir dire, emphatic jury instructions, and sequestration of jurors. See Nebraska Press, 427 U.S. at 563-64, 96 S.Ct. at 2804-05. These precau tions are like words to a writer, see L. Wittgenstein, Philosophical Investigations ¶¶ 11-14 (G.E.M. Anscombe trans. 3d ed. 1958). Each is a different tool which, depending on the context in which it is used," }, { "docid": "19942378", "title": "", "text": "Court has reminded us that “[g]rand jury secrecy ... is ‘as important for the protection of the innocent as for the pursuit of the guilty.’ ” United States v. Sells Eng’g, Inc., 463 U.S. 418, 424, 103 S.Ct. 3133, 77 L.Ed.2d 743 (1983) (quoting United States v. Johnson, 319 U.S. 503, 513, 63 S.Ct. 1233, 87 L.Ed. 1546 (1943)). The Supreme Court has catalogued additional reasons for preserving grand jury secrecy: (1) disclosure of pre-indictment proceedings would make many prospective witnesses “hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony”; (2) witnesses who did appear “would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements; and (3) there ‘would be the risk that those about to be indicted would flee or would try to influence individual grand jurors to vote against indictment.’ ” In re North, 16 F.3d 1234, 1242 (D.C.Cir. 1994) (quoting Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218-19, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979)). All the reasons offered by the Supreme Court demonstrate the necessity of employing ex parte proceedings for the indictment of persons suspected of criminal offenses. It is necessary to invade their liberty interests in order to hold them in place to be tried for those offenses for which there is probable cause to believe they are guilty. Even in the face of that necessity, their liberty interests receive some protection by a due process hearing as to whether they may remain at large on bail or recognizance pending a trial to determine their guilt beyond a reasonable doubt. See U.S. Const, amend. VIII. Neither the need to assure the presence of the defendant at trial nor any of the other historic reasons recognized by the Supreme Court for the ex parte secret nature of the grand jury proceedings compels the deprivation of property rights without due process pending a trial to determine whether the defendant is in fact guilty of the crimes charged and the property properly forfeitable. It" }, { "docid": "17977855", "title": "", "text": "for centuries, and the rule of grand jury secrecy “is an integral part of our criminal justice system.” Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218 n. 9, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979). Although the justification for grand jury secrecy has evolved over time, the interests served by the rule are well established: (1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before [the] grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with 'respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt. Id. at 219 n. 10, 99 S.Ct. 1667 (quoting United States v. Procter & Gamble Co., 356 U.S. 677, 681-82 n. 6, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958)). Rule 6(e) codifies the requirement that grand jury activities generally remain secret: “[A]n attorney for the government ... shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules____ A knowing violation of Rule 6 may be punished as a contempt of court.” Fed.R.Crim.P. 6(e)(2). The Supreme Court admonishes: “In the absence of a clear indication in a statute or Rule, we must always be reluctant to conclude that a breach of this secrecy has been authorized.” Sells Engineering, 463 U.S. 418, 425, 103 S.Ct. 3133, 77 L.Ed.2d 743 (1983). The Rule recognizes limited exceptions to grand jury secrecy, including an exception for disclosures made to state or federal government personnel: Disclosure otherwise prohibited by this rule of matters occurring before the grand jury, other than its deliberations and the vote of any grand juror, may" }, { "docid": "6683885", "title": "", "text": "government’s position is that he can’t make a decision without it.” III. Do the Newspapers Have a Right of Access to the Briefs and Hearing? A. The Secrecy of the Grand Jury The longstanding rules preserving grand jury secrecy are well established. See Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156; In re Grand Jury Matter (Catania), 682 F.2d 61, 63 (3d Cir.1982). As the Supreme Court explained in Douglas Oil, “[s]inee the 17th century, grand jury proceedings have been closed to the public, and records of such proceedings have been kept from the public eye.” 441 U.S. at 218 n. 9, 99 S.Ct. at 1673 n. 9. The secrecy of grand jury proceedings is a necessary incident to the proper functioning of the grand jury system. The Court has: noted several distinct interests served by safeguarding the confidentiality of grand jury proceedings. First, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual jurors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule. Id. at 218-19, 99 S.Ct. at 1672-73. Moreover, these “interests in grand jury secrecy, although reduced, are not eliminated merely because the grand jury has ended its activities.” Id. at 222, 99 S.Ct. at 1674. Thus, Douglas Oil implicitly makes clear that grand jury proceedings are not subject to a First Amendment right of access under the test of “experience and logic.” Historically, such proceedings have been closed to the public. Moreover, public access to grand jury proceedings would hinder, rather than further, the efficient" }, { "docid": "9994873", "title": "", "text": "Id. at 868. The only means to check the terrific power of the grand jury is the rule of grand jury secrecy, as mandated by Fed. R. Crim.P. 6 and the grand jury jurisprudence. C. Grand Jury Secrecy Historically, the proper functioning of the grand jury system has depended upon the secrecy of the grand jury proceedings. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218, 99 S.Ct. 1667, 1672, 60 L.Ed.2d 156 (1979). Grand jury secrecy is “older than our Nation itself.” Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399, 79 S.Ct. 1237, 1240, 3 L.Ed.2d 1323 (1959). “Since the 17th century, grand jury proceedings have been closed to the public, and records of such proceedings have been kept from the public eye ... The rule of grand jury secrecy was imported into our federal common law and is an integral part of our criminal justice system ... Federal Rule Crim.Proc. 6(e) codifies the rule that grand jury activities generally be kept secret ...” Douglas Oil, 441 U.S. at 218 n. 9, 99 S.Ct. at 1672 n. 9. The rule of secrecy “is ‘as important for the protection of the innocent as for the pursuit of the guilty.’ ” U.S. v. Sells Engineering, Inc., 463 U.S. 418, 424-25, 103 S. Ct. 3133, 3138, 77 L.Ed.2d 743 (1983) (quoting U.S. v. Johnson, 319 U.S. 503, 513, 63 S.Ct. 1233, 1238, 87 L.Ed. 1546 (1943)). The Supreme Court has adopted a succinct catalogue of reasons for grand jury secrecy, including preventing the escape of those whose indictment may be contemplated; insuring the utmost freedom to the grand jury in its deliberations, and preventing persons subject to indictment or their friends from importuning the grand jurors; preventing subornation of perjury or tampering with the witness who may testify before the grand jury and later appear at the trial of those indicted by it; encouraging free and untrammeled disclosures by persons who have information with respect to the commission of crime; and protecting an innocent and exonerated accused from disclosure of the fact that he has been under" }, { "docid": "3628138", "title": "", "text": "would also be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment.” Id. (emphasis added). “Grand jury secrecy ... is as important for the protection of the innocent as for the pursuit of the guilty.” Proceedings, 942 F.2d at 1199 (emphasis added). “Parties seeking grand jury transcripts ... must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed.” Douglas Oil Co. of Cal. v. Petrol Stops Northwest, 441 U.S. 211, 222, 99 S.Ct. 1667, 1674, 60 L.Ed.2d 156 (1979) (emphasis added). “But one seeking disclosure of grand jury proceedings must demonstrate more than relevance_ [SJe-crecy is not broken ‘except where there is a compelling necessity’ for the material.” Hemly v. United States, 832 F.2d 980, 983-84 (7th Cir.1987) (emphasis added). “ ‘Such a showing must be made even when the grand jury whose transcripts are sought has concluded its operations.’ ” Id. at 984 (citation omitted). The “request for grand jury material [must be] more than a request for authorization to engage in a fishing expedition.” Lucas, 725 F.2d at 1101 (emphasis added). “In a ease where a particularized need is established ‘the secrecy of the proceedings is lifted discretely and limitedly.’ ” Id. “In determining whether the party requesting disclosure has met his burden, the district court has ‘substantial discretion.’ ” Id. (citation omitted). “District courts that contemplate ordering disclosure must consider the possible effects upon the functioning of future grand juries.” Proceedings, 942 F.2d at 1199. “As other courts have held, due to the dangers created by unwarranted disclosure to the safety and reputations of both grand jury witnesses and those under investigation, and indeed to the continued viability of the grand jury as an investigative tool, we do not believe the mere passage of time has significantly diminished the need for preserving the secrecy of the grand jury testimony.” Lucas, 725" }, { "docid": "3029920", "title": "", "text": "the indictments in this case; 2. All subpoenas issued by the grand jury which produced the indictments in this case; 3. All documents produced voluntarily or pursuant to grand jury subpoena by corporate defendants and/or unindicted corporate co-conspirators and/or the present or former officers of either; 4. All written statements of Samuel B. Walls. Because of the strong policy of keeping grand jury proceedings secret, see Fed.R. Crim.Pro. 6(e); United States v. Procter & Gamble Co., 356 U.S. 677, 681, 78 S.Ct. 983, 985, 2 L.Ed.2d 1077 (1958), the United States Supreme Court has developed the standard that “[p]arties seeking grand jury transcripts under Rule 6(e) must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed.” Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222, 99 S.Ct. 1667, 1674, 60 L.Ed.2d 156 (1979). Petitioners assert that their need for these transcripts demonstrably outweighs the public interest in nondisclosure. First, they assert that since the criminal proceedings flowing from the grand jury investigation have been terminated, there is little reason for keeping the transcripts clothed in secrecy except to protect the grand jury witnesses from retaliation, lest witnesses before future grand juries be inhibited by the knowledge “that the secrecy of their testimony [may] be lifted tomorrow.” United States v. Procter & Gamble Co., 356 U.S. at 682, 78 S.Ct. at 986 (1958). They ask that this Court follow the lead of the Seventh Circuit, which has held that [i]n an antitrust context, the force of this reason is considerably diminished by the disclosure pursuant to Rule 16(a)(1)(A) to the witness’ corporate employer, who has greater incentive and power to retaliate than anyone else. Once the employer has the transcript, all that remains of the reason for secrecy is the need to protect the witness, to the extent it is still possible to do so, from potential adverse effects on his future relationships with members of" }, { "docid": "3628137", "title": "", "text": "in refusing to unseal, or allow access to, the affidavits. As previously mentioned, the magistrate judge and the district court were required to, and did, consider the potential adverse consequences of granting immediate access to the warrant affidavits. Such consequences include the likelihood that the secrecy of grand jury proceedings would be violated. See Fed.R.Crim.P. 6(e). Federal Rule of Criminal Procedure 6(e) codifies the centuries-old requirement that grand jury proceedings be kept secret. Matter of Grand Jury Proceedings, 942 F.2d 1195, 1198 (7th Cir.1991). “Our judicial system has recognized that the proper functioning of grand jury proceedings depends upon their absolute secrecy.” Id. (emphasis added). Several distinct interests are served by safeguarding the confidentiality of grand jury proceedings. “[I]f pre-indictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily. ” Lucas v. Turner, 725 F.2d 1095, 1100 (7th Cir.1984) (emphasis added). “Witnesses who appear before the grand 'jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There would also be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment.” Id. (emphasis added). “Grand jury secrecy ... is as important for the protection of the innocent as for the pursuit of the guilty.” Proceedings, 942 F.2d at 1199 (emphasis added). “Parties seeking grand jury transcripts ... must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed.” Douglas Oil Co. of Cal. v. Petrol Stops Northwest, 441 U.S. 211, 222, 99 S.Ct. 1667, 1674, 60 L.Ed.2d 156 (1979) (emphasis added). “But one seeking disclosure of grand jury proceedings must demonstrate more than relevance_ [SJe-crecy is not broken ‘except where there is a compelling necessity’ for the material.” Hemly v. United States, 832 F.2d 980, 983-84 (7th Cir.1987) (emphasis added). “ ‘Such a showing must be made even when" }, { "docid": "13952925", "title": "", "text": "We find that the government did sufficiently charge Jet-er with conspiracy, and that it presented adequate proof to sustain a conspiracy conviction. CONCLUSION In summary, we find none of Jeter’s arguments convincing, and we accordingly Affirm the convictions on each of the counts. . Appellant Jeter, in any event, could not make a credible claim that his passing of secret grand jury information was somehow deserving of First Amendment protection. In Frohwerk v. United States, 249 U.S. 204, 206, 39 S.Ct. 249, 250, 63 L.Ed. 561 (1919), Justice Holmes stated: \"We venture to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever supposed that to make criminal the counseling of a murder ... would be an unconstitutional interference with speech.” By the same token, no one would suppose that criminal punishment of a scheme to transmit secret grand jury information exclusively to suspected grand jury targets represents an unconstitutional interference with speech. See Douglas Oil Company v. Petrol Stops Northwest, 441 U.S. 211, 218, 99 S.Ct. 1667, 1672, 60 L.Ed.2d 156 (1979) (\"proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings\"); United States v. Johnson, 319 U.S. 503, 513, 63 S.Ct. 1233, 1238, 87 L.Ed. 1546 (1943) (secrecy of grand jury proceedings as “indispensable” to system of justice); see also 1 C. Wright, Federal Practice & Procedures § 106, at 244 (1982) (“The great importance of preserving the secrecy of the grand jury while the grand jury is still considering a matter can hardly be questioned\"). . While Rule 6(e)(2) supplies \"the general provision for secrecy in order to give effect to and protect [grand jury] sealed records.\" Worrell Newspapers of Indiana, Inc. v. Westhafer, 739 F.2d 1219, 1223 (7th Cir.1984), aff'd — U.S. -, 105 S.Ct. 1155, 84 L.Ed.2d 309 (1985), it also prescribes and limits the exercise of the court’s criminal contempt powers for all disclosure mentioned in Rule 6(e). See, e.g., Rules 6(e)(1), (e)(2), (e)(4), (e)(6). . In Howard the Fifth Circuit decided whether the two defendants could be prosecuted under 18 U.S.C. § 1503." }, { "docid": "6658888", "title": "", "text": "under indictment, to ensure free deliberations, to prevent subornation of perjury, to encourage disclosure by witnesses, and to protect the innocent from unwarranted exposure. See People ex rel. Sears v. Romiti, 50 Ill.2d 51, 277 N.E.2d 705 (1971), cert. denied, 406 U.S. 921, 92 S.Ct. 1778, 32 L.Ed.2d 121 (1972); People v. French, 61 Ill.App.2d 439, 209 N.E.2d 505 (1965). Under federal law, the federal grand juries are clothed with secrecy, Fed. R. Crim.P. 6(e), for precisely the same reasons. See, e. g., Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218-19, 99 S. Ct. 1667, 1672, 60 L.Ed.2d 156 (1979); United States v. Procter & Gamble Co., 356 U.S. 677, 681-82 n. 6, 78 S.Ct. 983, 985-86 n. 6, 2 L.Ed.2d 1077 (1958). Neither party has suggested that state grand jury materials should not be accorded at least the same measure of protection in federal courts that is accorded to federal grand jury materials. Furthermore, principles of comity dictate that we carefully consider the integral role secrecy plays in the Illinois grand jury system, which is in\" turn crucial to the operation of the criminal justice system of that state. Federal courts have had long experience balancing the strong interest in grand jury secrecy against the need for disclosure in the context of decisions applying Fed.R. Crim.P. 6(e). On the basis of these factors, we conclude that the parties have properly defined the scope of the federal common law privilege to be afforded to these state grand jury materials by reference to that rule. It is well-settled that disclosure of federal grand jury materials to private parties under Rule 6(e) requires a showing that they are needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that the request is structured to cover only the material needed. E. g., Douglas Oil, supra, 441 U.S. at 222, 99 S.Ct. at 1674. The application of this standard accommodates both the continuing need for secrecy of grand jury materials and the need of the party whose" }, { "docid": "17356591", "title": "", "text": "States v. Sells Engineering, Inc., 463 U.S. 418, 103 S.Ct. 3133, 77 L.Ed.2d 743 (1983); Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979), and with good reason they treat a John Doe proceeding as functionally equivalent to a federal grand jury investigation. Plaintiffs O’Keefe and Club for Growth invoke the rule that private advocacy organizations and their contributors often are entitled to anonymity, lest public disfavor unduly raise the cost of speech. See NAACP v. Alabama, 357 U.S. 449, 462-63, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); Perry v. Schwarzenegger, 591 F.3d 1147, 1160 (9th Cir .2010). The analogy to grand jury proceedings is the strongest of these three. The Supreme Court wrote in Sells Engineering: “We consistently have recognized that the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings.... [I]f preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution.” 463 U.S. at 424, 103 S.Ct. 3133, quoting from Douglas Oil. But we do not think that any of the three analogies is dispositive. Once again, federalism supplies the reason. The documents that the litigants want to disclose, or conceal, were gathered as part of a state proceeding. Wisconsin, not the federal judiciary, should determine whether, and to what extent, documents gathered in a John Doe proceeding are disclosed to the public. See Socialist Workers Party v. Grubisic, 619 F.2d 641, 643 (7th Cir.1980) (“federal common law ... accords at least a qualified privilege to the records of state grand jury proceedings”). Otherwise the very fact that someone chose to complain, in federal court, about the conduct of an ongoing state investigation would defeat the state interest in secrecy, even if the federal court concludes — as we have done in this opinion— that the controversy does not belong" }, { "docid": "23223853", "title": "", "text": "articles that refer to factual determinations made by federal investigators, that describe specific substantive areas in which Lance might have violated the law, that depict specific areas into which the grand jury was inquiring, and that attribute to Justice Department officials’ statements that Lance and other persons would be indicted reflect information which could only have been garnered from sources in the Justice Department. The Supreme Court has consistently acknowledged the importance of the secrecy requirements imposed upon grand jury proceedings to the proper functioning of the grand jury system. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979); United States v. Proctor & Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958). Maintaining the confidentiality of grand jury proceedings protects several important interests of the government and of private citizens. First, if preindictment proceedings were conducted publicly, individuals who learned of their possible indictment might flee the jurisdiction or attempt to tamper with the grand jurors or witnesses appearing before them. Persons with information about crimes would be less willing to appear voluntarily and to speak fully and frankly, knowing that the individuals about whom they testify would be aware of that testimony. The rule of secrecy avoids injury to the reputation of those persons accused of crimes whom the grand jury does not indict. Finally, it encourages the grand jurors to investigate suspected crimes without inhibition and to engage in unrestricted deliberations. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. at 219, 99 S.Ct. at 1673, 60 L.Ed.2d at 165 (1979); United States v. Proctor & Gamble Co., 356 U.S. at 681 n.6, 78 S.Ct. at 986 n.6, 2 L.Ed.2d at 1081 n.6 (1958); United States v. Malatesta, 583 F.2d 748, 752 (5th Cir. 1978), modified on other grounds, 590 F.2d 1379 (eh banc), cert. denied, 440 U.S. 962, 99 S.Ct. 1508, 59 L.Ed.2d 777 (1979); United States v. Howard, 569 F.2d 1331, 1335 (5th Cir.), cert. denied, 439 U.S. 834, 99 S.Ct. 116, 58 L.Ed.2d 130 (1978). Embodying this reasoning, F.R.Crim.P. 6(e)(1) provides" }, { "docid": "17121219", "title": "", "text": "investigation is on-going. See generally Fed.R.Crim.P. 6(e)(2) (prohibiting disclosure of matters occurring before the grand jury); see also In re the Grand Jury Empaneling, 171 F.3d at 836; In re Grand Jury, 103 F.3d at 1145. The Supreme Court has given the following reasons for protecting grand jury secrecy: (1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before [the] grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect [an] innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt. United States v. John Doe, Inc. I, 481 U.S. 102, 109 n. 5, 107 S.Ct. 1656, 95 L.Ed.2d 94 (1987) (quotation omitted), quoted in In re Grand Jury Investigation (DiLoreto), 903 F.2d 180, 183 (3d Cir.1990); see also Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 219, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979) (describing similar reasons for the courts’ reluctance “to lift unnecessarily the veil of secrecy from the grand jury”). Moreover, the Supreme Court made clear in Dionisio, that saddling a grand jury with minitrials “would assuredly impede its investigation and frustrate the public’s interest in the fair and expeditious administration of the criminal laws.” 410 U.S. at 17, 93 S.Ct. 764. Given the acknowledged need for secrecy in grand jury proceedings, we reject Appellant’s argument that the “unique facts and circumstances in this case,” including the length of time the investigation has been pending and the fact that the nature of the investigation has already been made public in several contexts, required the District Court to order disclosure of the government’s ex parte affidavit." }, { "docid": "6118690", "title": "", "text": "be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule.” 103 S.Ct. at 3138 (quoting Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218-219, 99 S.Ct. 1667, 1672-1673, 60 L.Ed.2d 156 (1979) (footnotes and citation omitted)). “For all of these reasons, courts have been reluctant to lift unnecessarily the veil of secrecy from the grand jury.” Douglas Oil, 441 U.S. at 220, 99 S.Ct. at 1673. One of the principal reasons for preserving the secrecy of grand jury proceedings is to protect the reputations of both witnesses and those under investigation. See In re Grand Jury Investigation of Cuisinarts, Inc., 665 F.2d 24, 33 (2nd Cir.1981), cert. denied, — U.S. —, 103 S.Ct. 1520, 75 L.Ed. 945 (1983). “Grand jury secrecy, then, is ‘as important for the protection of the innocent as for the pursuit of the guilty.’ ” Sells Engineering, Inc., 103 S.Ct. at 3138 (quoting United States v. Johnson, 319 U.S. 503, 513, 63 S.Ct. 1233, 1238, 87 L.Ed. 1546 (1943)). The need for such protection becomes apparent when it is recognized that a grand jury has extraordinary investigative powers and can indict or call persons before it based upon hearsay or even the grand jurors’ personal knowledge. See Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 79 S.Ct. 1237, 1241, 3 L.Ed.2d 1323 (1959). Secrecy of such proceedings also protects the safety of those who are called to testify before it. “The possibility of retaliation cannot be ignored as a reason for preserving grand jury secrecy. It is apparent, therefore, that secrecy protects, and was intended to protect, those who appear before the grand jury as witnesses. Indeed, wit nesses before the grand jury, because they are aware of the traditional secrecy enveloping these proceedings, have reason to assume that their presence and their testimony will not be revealed.” In" }, { "docid": "23424674", "title": "", "text": "S.Ct. 868, 27 L.Ed.2d 828 (1971); Cargill v. United States, 381 F.2d 849 (10th Cir.1967), cert, denied, 389 U.S. 1041, 88 S.Ct. 781, 19 L.Ed.2d 831 (1968); United States v. Youngblood, 379 F.2d 365 (2d Cir.1967). Even if we were to assume that the possible impeachment value of Steinhorst’s grand jury testimony obviated the requirement of a showing of particularized need, however, we do not find that this assumed need for disclosure outweighs the need for continued secrecy. While the aura shrouding grand jury proceedings has perhaps become less opaque over the years, it is indisputable that there is still a substantial interest in maintaining the secrecy of those proceedings. The Supreme Court in Douglas enumerated a number of these reasons: First, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 219, 99 S.Ct. 1667, 1673, 60 L.Ed.2d 156 (1979). Each of these reasons bears on the sanctity of an on-going grand jury investigation. Here, the Assistant State Attorney for the county in which the grand jury was sitting testified that the jury was still engaged in “highly sensitive” proceedings. In the cases which Appellant claims mandate disclosure of the grand jury proceedings, the grand jury had finished its deliberations, sharply diminishing the fear of any effect upon its ability to actively seek the truth. In Dennis, for example, seven years had elapsed between the activities of the grand jury and the trial testimony. Dennis v. United States, 384 U.S. 855, 872, 86 S.Ct. 1840, 1850, 16 L.Ed.2d 973 (1966). Where a grand jury is still deliberating, courts have held that “the reasons for grand" }, { "docid": "6118689", "title": "", "text": "serving the community might suffer if those testifying today knew that the secrecy of their testimony would be lifted tomorrow.’ Procter & Gamble, 356 U.S. at 682, 78 S.Ct. at 986.” Matter of Grand Jury Proceedings, Miller Brewing Co., 687 F.2d 1079, 1090 n. 14 (7th Cir.1982). In United States v. Sells Engineering, Inc., — U.S. —, 103 S.Ct. 3133, 77 L.Ed.2d 743 (1983), the Supreme Court reiterated the rationale for their traditional recognition of secrecy of grand jury proceedings. “[T]he proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings. In particular, we have noted several distinct interests served by safeguarding the confidentiality of grand jury proceedings. First, if pre-indictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appear before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule.” 103 S.Ct. at 3138 (quoting Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218-219, 99 S.Ct. 1667, 1672-1673, 60 L.Ed.2d 156 (1979) (footnotes and citation omitted)). “For all of these reasons, courts have been reluctant to lift unnecessarily the veil of secrecy from the grand jury.” Douglas Oil, 441 U.S. at 220, 99 S.Ct. at 1673. One of the principal reasons for preserving the secrecy of grand jury proceedings is to protect the reputations of both witnesses and those under investigation. See In re Grand Jury Investigation of Cuisinarts, Inc., 665 F.2d 24, 33 (2nd Cir.1981), cert. denied, — U.S. —, 103 S.Ct. 1520, 75 L.Ed. 945 (1983). “Grand jury secrecy, then, is ‘as important for the protection of the innocent" }, { "docid": "11946625", "title": "", "text": "proceedings were made public” and witnesses were subjected “to retribution as well as to inducements;” (2) decreasing the risk that “those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment;” and (3) “assuring] that persons who are accused but exonerated by the-grand jury will not be held up to public ridicule.” Butterworth v. Smith, 494 U.S. 624, 630, 110 S.Ct. 1376, 108 L.Ed.2d 572 (1990) (internal quotation marks and citations omitted); see also Rehberg v. Paulk, — U.S.-,-, 132 S.Ct. 1497, 1509, 182 L.Ed.2d 593 (2012) (describing same reasons for grand jury’s secrecy); Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 219 n. 10, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979) (summarizing same “distinct interests served by safeguarding the confidentiality of grand jury proceedings”); In re Grand Jury Subpoena (Miller), 438 F.3d 1141, 1150-51 (D.C.Cir.2005) (citing same “catalog[]” of “multiple reasons for preserving the ancient secrecy of the grand jury”); SEC v. Dresser Indus., Inc., 628 F.2d 1368, 1382 n. 36 (D.C.Cir.1980) (describing “rationale for grand jury secrecy” as “well established”). To effectuate the purposes of protecting the secrecy of grand jury proceedings, Rule 6(e) extends secrecy beyond the transcribed proceedings actually occurring before -the grand jury to cover “any hear ing,” Fed. R. Crim. P. 6(e)(5), and “[r]ecords, orders and subpoenas relating to grand jury proceedings ... to the extent and as long as necessary to prevent the-unauthorized disclosure of a matter occurring before a grand jury,” Fed. R. Crim. P. 6(e)(6). As the D.C. Circuit has observed, “the scope of the secrecy' is necessarily broad ... encompassing] not only the direct revelation of grand jury transcripts but also the disclosure of information which would reveal ‘the identities of witnesses, or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or. questions of the jurors, and the like.’ ” Fund for Constitutional Gov’t v. Nat’l Archives & Records Serv., 656 F.2d 856, 869 (D.C.Cir. 1981) (quoting Dresser Industries, Inc, 628 F.2d at 1382). At the same time, “a veil of secrecy” is not" }, { "docid": "9625902", "title": "", "text": "“[t]he disclosure of information ‘coincidentally before the grand jury [which can] be revealed in such a manner that its revelation would not elucidate the inner workings of the grand jury’ is not prohibited.” Senate of Puerto Rico v. United States Dep’t of Justice, 823 F.2d 574, 582 (D.C.Cir.1987)(quoting Fund for Constitutional Gov’t v. National Archives and Records Serv., 656 F.2d 856, 870 (D.C.Cir.1981)). Thus, the phrases “likely to occur” and “strategy and direction” must be read in light of the text of Rule 6(e) — which limits the Rule’s coverage to “matters occurring before the grand jury” — as well as the purposes of the Rule. As we have recited on many occasions, Rule 6(e) ... protects several interests of the criminal justice system: “First, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule.” In re Sealed Case No. 98-3077, 151 F.3d 1059, 1070 (D.C.Cir.1998) (quoting Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 219, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979)); see also Fund for Constitutional Gov’t, 656 F.2d at 869 (same). These purposes, as well as the text of the Rule itself, reflect the need to preserve the secrecy of the grand jury proceedings themselves. It is therefore necessary to differentiate between statements by a prosecutor’s office with respect to its own investigation, and statements by a prosecutor’s office with respect to a grand jury’s investigation, a distinction of the utmost significance upon which several circuits have already remarked. See, e.g., United" } ]

[ { "docid": "1075419", "title": "", "text": "which was enacted by Congress to protect the Government’s interest concerning Government contracts. Thus, a brief analysis of 41 U.S.C. § 112(e) should be instructive. This statute provides, inter alia, that title to all materials purchased by a contractor which are to be used in the performance of a Government war contract is vested in the Government. Thus, it is apparent that if Congress intended to ensure that the interest of the Government shall be fully safeguarded in connection with contracts it enters into with private entities, Congress would do so in a clear and an unmistakable fashion. Congress did not do so in a case where the Government’s claim relates to alleged over-funding of pension plans through Government contracts. This supports the conclusion that the Debtor’s reversionary interest in the overfunded pension plans is property of the estate, unless § 541(b)(1) of the Bankruptcy Code applies. This section exempts from properties of the estate properties in which the Debtor merely holds a true legal title and holds the property in trust for beneficiaries of the trust. Considering the trust theory, it is clear there was never an express trust created by the contract concerning the Debtor’s reversionary interest in which the Government was intended to be the beneficiary of the trust. The only other alternatives which might warrant a finding that the Government has an interest superior to that of the Debtor in the reversionary interest is that the reversionary interest is impressed by either a constructive or resulting trust in favor of the Government based on the applicable provisions of FAR and CAS. A resulting trust arises by operation of law and reflects the true intent of the parties. Doing v. Riley, 176 F.2d 449 (5th Cir.1949). There is nothing in this record which would warrant the conclusion that the parties, in fact, intended that the Government shall have a proprietary interest or an in rem interest in reversionary interest of the overfunded pension plans. A constructive trust is created to correct a wrong or a fraud committed. Yawn v. Blackwell, 343 So.2d 906 (Fla.3d DCA 1977); Doing" } ]

[ { "docid": "1086263", "title": "", "text": "Based on this factor and our belief that creditors would expect to receive notice of the postpetition contributions, we hold that the Postpetition Transfer was not in the ordinary course of the Debtor’s business, and may be avoided pursuant to § 549. We finally address whether the Debtor’s reversionary interest in the Plan is property of the Debtor's bankruptcy estate. As previously noted, the Plan Agreement provides that the Debtor can terminate the Plan at any time. Furthermore, the Plan Agreement provides that after the termination of the Plan, the Debtor “shall receive such amounts, if any, as may remain after the satisfaction of all liabilities of the Plan_” The distribution of residual assets of the Plan to Debtor is permissible under applicable law if (A) all liabilities of the plan to participants and their beneficiaries have been satisfied, (B) the distribution does not contravene any provision of law, and (C) the plan provides for such a distribution in these circumstances. 29 U.S.C. § 1344(d)(1). As stated above, § 541(a)(1) of the Code provides that but for certain exceptions not applicable to this proceeding, property of the estate includes “all legal or equitable interests of the debtor in property as of the commencement of the case.” Applying this provision to the facts before us, we must find that the Debtor’s reversionary interest in the Plan’s assets is an asset of the estate. Creasy v. Coleman Furniture Corp, 763 F.2d 656, 662 (4th Cir.1985) (“[t]he trustee acquires the rights that the corporate bankrupt possessed; therefore, the excess funds would be an asset in the bankrupt’s estate”). See also In re Bicoastal Corp., 136 B.R. 290, 295 (Bankr.M.D.Fla.1992). However, the estate’s reversionary interest does not give it a present right to part or all of the Plan’s assets. As previously noted, federal law provides that residual assets of an employer’s pension plan may be distributed to the employer if all of the plan’s liabilities to participants and their beneficiaries have been satisfied. 29 U.S.C. § 1344(d)(1)(A). Furthermore, the plan must specifically provide for such a distribution. 29 U.S.C. § 1344(d)(1)(C). In this" }, { "docid": "14795692", "title": "", "text": "his petition. To this end the term ‘property’ has been construed most generously and an interest is not outside its reach because it is novel or contingent or because enjoyment must be postponed.” Segal v. Rochelle, 382 U.S. 375, 379, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966). Property of the estate “ ‘includes all interests, such as ... contingent interests and future interests, whether or not transferable by the debtor.’ ” In re Prudential Lines, Inc., 928 F.2d 565, 572 (2d Cir.1991) (quoting H.R.Rep. No. 95-595, 175-76 (1978)). It is also well established that “the mere ‘opportunity’ to receive an economic benefit in the future” is property with value under the Bankruptcy Code. R.M.L., 92 F.3d at 148. Under ERISA, an employer who sponsors a qualifying retirement plan is entitled to recoup any surplus upon termination of the plan. See 29 U.S.C. § 1344(d)(1); Ashenbaugh v. Crucible, Inc., 1975 Salaried Retirement Plan, 854 F.2d 1516, 1523 n. 9 (3d Cir.1988). This recoupment right is a transferable property interest. See, e.g., Creasy v. Coleman Furniture Corp., 763 F.2d 656, 662 (4th Cir.1985) (“[U]nder the terms of the contract any left-over assets of the [pension] fund were to be paid over to the Company.... [T]he excess, if any, would be property of the debtor’s estate. The trustee acquires the rights that the corporate bankrupt possessed; therefore, the excess funds would be an asset in the bankrupt’s estate.”); In re Wingspread Corp., 155 B.R. 658, 664 (Bankr.S.D.N.Y.1993) (“[A]l-though the right to recover [the surplus from an ERISA-qualified retirement plan] is a future estate, the reversion itself is a present, vested estate. As a result, the employer’s reversionary interest falls within the broad reach of section 541(a) of the Bankruptcy Code and is considered property of the debtor’s estate. Not only does the employer have a present interest in those reversionary assets, but that reversionary interest is transferable and alienable.” (internal citations omitted)). In this context, the District Court was correct that Fruehaufs potential future recoupment of the surplus from its pension plan was a transferable property interest for purposes of § 548. B." }, { "docid": "18674185", "title": "", "text": "interest FMI has had in the certificate is a contingent reversionary interest as a potential beneficiary of the trust. Once we have determined that FMI does have an interest in the trust funds, the Chapter XI court would, of course, have jurisdiction over any funds to which the debtor has a rightful claim. At present, however, the Court is able to proceed with determining which party is entitled to receive the trust res and its accumulated interest. Employment of this analysis preserves the function of the deposit as protection for the party prevailing at the trial level from the possibility of future insolvency of the losing party. At the same time our interpretation does no material damage to the automatic stay provision of Rule 11-44, since the deposit serving as a supersedeas is not available to the reorganization court to aid in the execution of the plan in the Chapter XI proceeding. We hold, therefore, that these appeals are not stayed by Rule 11-44 and we are free to review their merits. (Footnotes omitted) That case was subsequently followed in Carter Baron Drilling v. Excel Energy Corp., 76 B.R. 172 (D.Colo.1987) where the court held that a cash deposit serving as a supersedeas bond was not property of the bankrupt estate; in Moran v. Johns-Manville Sales Corp., 28 B.R. 376 (N.D.Ohio 1983) where the court held that the super-sedeas bond of an insurance company is not an asset or property of the estate of the debtor; and in Grubb v. Federal Deposit Insurance Corp., 833 F.2d 222 (10th Cir.1987) where the court held that super-sedeas bonds and their collateral once deposited as security with the district court, ceased to be property of the debtor, and therefore were not assets of the receivership that were available for distribution to creditors. See, also Saper v. West, 263 F.2d 422 (2d Cir.1959). The ALWANS rely on the dissenting opinion in Grubb v. Federal Deposit Insurance Corp., supra, and In re Leonard, 94 B.R. 401 (Bkrtcy.E.D.N.C.1989). The AL-WANS’ authority is not persuasive. The dissenting opinion in Grubb stands alone and no court has come" }, { "docid": "14795693", "title": "", "text": "763 F.2d 656, 662 (4th Cir.1985) (“[U]nder the terms of the contract any left-over assets of the [pension] fund were to be paid over to the Company.... [T]he excess, if any, would be property of the debtor’s estate. The trustee acquires the rights that the corporate bankrupt possessed; therefore, the excess funds would be an asset in the bankrupt’s estate.”); In re Wingspread Corp., 155 B.R. 658, 664 (Bankr.S.D.N.Y.1993) (“[A]l-though the right to recover [the surplus from an ERISA-qualified retirement plan] is a future estate, the reversion itself is a present, vested estate. As a result, the employer’s reversionary interest falls within the broad reach of section 541(a) of the Bankruptcy Code and is considered property of the debtor’s estate. Not only does the employer have a present interest in those reversionary assets, but that reversionary interest is transferable and alienable.” (internal citations omitted)). In this context, the District Court was correct that Fruehaufs potential future recoupment of the surplus from its pension plan was a transferable property interest for purposes of § 548. B. Transfer The District Court also correctly found that a property interest under the Third Amendment was transferred. The Bankruptcy Code defines “transfer” in the broadest possible terms: “each mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with property or an interest in property.” 11 U.S.C. § 101(54)(D). Under ERISA’s “anti-cutback” provision, benefits accrued in a qualified plan are irrevocable; an administrator or sponsor may not decrease them once they are granted. See 29 U.S.C. § 1054(g)(1); Central Laborers’ Pension Fund v. Heinz, 541 U.S. 739, 743-44, 124 S.Ct. 2230, 159 L.Ed.2d 46 (2004); see also Hoover v. Cumberland, Md. Area Teamsters Pension Fund, 756 F.2d 977, 981 (3d Cir.1985) (defining “accrued benefit” as “ ‘an annual benefit commencing at normal retirement age’ ” (quoting 29 U.S.C. § 1002(23)(A))). There is no question here that, upon ratification of the Third Amendment by the Board, the benefits of the Pension Thaw and Cash Benefit Provisions “accrued” to the Class Defendants. Because ERISA prohibited Fruehauf from decreasing or revoking those benefits," }, { "docid": "13915155", "title": "", "text": "facts which do not specifically appear in the reported opinion (that is, the extent of the parties’ knowledge of the existence of excess funds and amount thereof at the time the security interest was granted to the creditor). Further, in addressing a preferential transfer issue, the Long court specifically states that the debtor acquired rights in the property (within the meaning of 11 U.S.C. § 547(e)(3)), through the statutory provisions of 29 U.S.C. § 1344(d) and the terms of the plan itself. That analysis is consistent with this court’s finding that McGrew obtained a present reversionary interest in the trust assets at the time it executed its Plan through the terms of § 10.01(d)(vi) as authorized by 29 U.S.C. § 1344(d)(1)(C). McGrew had sufficient rights in the collateral in 1980 within the meaning of O.R.S. 79.2030 to allow Northwest’s security interest to attach. The trustee states McGrew’s contingent possibility of a refund is simply not the kind of property interest which the authors of the Uniform Commercial Code (U.C.C.) intended to be treated as a general intangible under Article 9. In support of this position he quotes a portion of the Official Comment to § 9-106 of the U.C.C.: The term “general intangibles” brings under this Article miscellaneous types of contractual rights and other personal property which are used or may become customarily used as commercial security. [Emphasis added] Examples are goodwill, literary rights and rights to performance. Other examples are copyrights, trademarks and patents, except to the extent that they may be excluded by Section 9-104(a)_ Note that this catch-all definition does not apply to money or to types of intangibles which are specifically excluded from the coverage of the Article (Section 9-104)_ Memorandum in Support of Defendant’s Motion for Summary Judgment at p.p. 8-9 (Filed Jan. 15, 1988). This court recently held that an interest in a partnership was a general intangible. See, Charter First Mortgage, Inc. v. The Oregon Bank (In re Charter First Mortgage, Inc.), Ch. 11 Case No. 683-07420, Adv. No. 684-6059, slip op. at 25, (Bankr.D.Or. May 24, 1988). In so holding I found" }, { "docid": "12249579", "title": "", "text": "F.2d 1400, 1402 (9th Cir.1986); 4 Collier on Bankruptcy ¶ 541.02, at 541-11 (15th ed. 1985) (The Bankruptcy Code does not “provide[ ] any rules for determining whether the debtor has an interest in property_”). The estate under § 541(a) succeeds only to those interests that the debtor had in property prior to commencement of the bankruptcy case. Creasy v. Coleman Furniture Corp., 763 F.2d 656, 662 (4th Cir.1985); see also Moody v. Amoco Oil Co., 734 F.2d 1200, 1213 (7th Cir.1984) (“[Whatever rights a debtor has in property at the commencement of the case continue in bankruptcy — no more, no less.”). The existence and nature of a debtor’s, and hence the estate’s, interest in property must be determined by resort to nonbankruptcy law, In re Polycorp Assoc., Inc., 47 B.R. 671, 673 (Bkrtcy.N.D.Cal.1985); see generally 4 Collier on Bankruptcy ¶ 541.01, at 541-10, 10-13 (The “existence and nature of the debtor’s interest in property ... are determined by nonbankruptcy law,” usually state law.) — either federal law, see, e.g., In re Massengill, 73 B.R. 1008 (Bkrtcy.E.D.N.C.1987) (debtor’s interest in property governed by Farm Credit Act of 1971, 12 U.S.C. § 2001, et seq.), or, as is the case here, state law. See, e.g., In re N.S. Garrott & Sons, 772 F.2d 462, 466 (8th Cir.1985) (“The nature and extent of the debt- or’s interest in property are determined by [Arkansas] state law.”). There is no dispute that FCX has an interest in the patronage certificates and that such interest became property of the bankruptcy estate upon the filing of FCX’s Chapter 11 petition. See, e.g., In re Schauer, 62 B.R. 526, 529 (Bkrtcy.D.Minn.1986) (recognizing that patronage equity held by a debtor in a cooperative becomes property of the estate); In re Lamar Farmers Exchange, 76 B.R. 712, 716 (Bkrtcy.W.D.Mo.1987) (same). There is also no dispute that under Minnesota state law, and specifically Universal’s by-laws, FCX’s interest is limited; the certificates are not currently due and payable or payable on FCX’s demand. Rather, the certificates represent a contingent entitlement; FCX’s right to a share of Universal’s profits payable at" }, { "docid": "20271641", "title": "", "text": "16, is not to the contrary. In that case, we held that a corporate debtor’s right to recoup an accumulated surplus in its pension plan was property, even though the plan trustee had the right to make an irrevocable election under ERISA to increase pension benefits, denying the debtor the benefit of that surplus. See 444 F.3d at 211 (noting that property may be \"contingent” and that \"the mere opportunity to receive an economic benefit in the future is property with value under the Bankruptcy Code” (internal quotation marks omitted)). But in that case the debtor had a contractual right to recover the surplus, which we found to be a \"future estate, [in which] the reversion itself is a present, vested estate,”- and one that was \"transferable and alienable.” Id. As a result, we held that the -debtor’s \"reversionary interest falls within the broad reach of section 541(a) of the Bank ruptcy Code and is considered property of the debtor's estate.” Id. An S-corp has no such contractual or otherwise \"reversionary” interest in its tax status, let alone one that is \"transferable and alienable.” . See supra note 2. The S-corp parent's contingencies include preservation of its own S-corp election which, as discussed above, is controlled by its shareholders. . The terms \"property of debtor” and “interests of the debtor in property” are co-extensive for purposes of § 541(a)(1). Begier v. IRS, 496 U.S. 53, 59 n. 3, 110 S.Ct. 2258, 110 L.Ed.2d 46 (1990). . That is what happened in this case; MSC II was incorporated in 2005, and BDI made the QSub election in 2006. . The Debtors argue that a QSub's separate existence \"is respected for a number of ... purposes, including various tax purposes as set forth in the U.S. Treasury regulations.” (Debtors’ Br. in Resp. to Barden Appellants’ Opening Br. at 23.) However, the purposes they cite for which a QSub's separate exisr tence is respected (for taxes due on pre-QSub income, employment and excise taxes, and the obligation to file information returns, see Treas. Reg. § 1.1361-4(a)(6)(a)(9)) are the narrow exceptions to the general" }, { "docid": "23255", "title": "", "text": "denied, 512 U.S. 1247, 114 S.Ct. 2771, 129 L.Ed.2d 884 (1994)). The trustee has the burden of establishing each of the elements of a fraudulent transfer claim. See In re R.M.L., Inc., 92 F.3d 139, 144 (3d Cir.1996). See also Collier on Bankruptcy ¶ 548.10 (15th Ed.1997). “This burden of proof never shifts.” Id. A. Interest in Property The parties disagree as to whether the property right at issue is the contingent interest in the Plan’s surplus, or the Plan’s surplus itself. The Class Defendants contend that Pension Transfer failed to demonstrate that a surplus existed at the time of the transfer, and that, therefore, there is no property interest at issue. Pension Transfer contends that the relevant inquiry is the value of the contingent interest in the Plan’s surplus at the time of the transfer. Section 541 of the Bankruptcy Code defines property of the estate as “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541. As of January 1, 1996, the actuary to the Plan projected a surplus of approximately $10.6 million in the Plan. (PL’s Ex. 23.) In November 1996, Fruehauf estimated the cost of the Third Amendment to be approximately $2.4 million. (D.I. 118 at 6, ¶ 11.) Even assuming there was no surplus in the Plan at the time of the transfer in September 1996, under ERISA and section 9.4 of the Plan, Fruehauf, as the Plan’s sponsor, was entitled to any surplus upon termination of the Plan. (PL's Ex. 2 at 3.) Future interests are property interests under the Bankruptcy Code. See In re Wingspread Corp., 155 B.R. 658, 664 (Bankr.S.D.N.Y.1993). Thus, surplus in the Plan was a property interest of Fruehauf. See id.; Creasy v. Coleman Furniture Corp., 763 F.2d 656, 662 (4th Cir.1985). As such, the Court finds that Fruehaufs interest in the Plan surplus falls within the definitional reach of section 541(a) of the Bankruptcy Code and is considered property of Fruehaufs estate. See In re Wingspread Corp., 155 B.R. at 664; Creasy, 763 F.2d at 662. For these" }, { "docid": "13915152", "title": "", "text": "being totally consumed, it is logical one may hold a vested reversionary interest with enjoyment postponed with a present value which, upon elimination of the prior posses-sory interest at some future date, may then be valueless. The trustee also asserts that McGrew held no alienable property right in the trust fund prior to the bankruptcy filing. Northwest could not, therefore, in 1980, obtain a security interest in any property right which McGrew might have had in the trust fund. There is nothing in the nature of McGrew’s interest in the trust fund, as identified by the court, which makes the interest inalienable. Reversions are alienable. Thus one must look elsewhere for the source of any restrictions on the alienability of McGrew’s reversionary interest. The trustee argues that to the extent McGrew might otherwise be found to have had a property interest in the fund in 1980 which could be categorized under Article 9 of the Oregon’s version of the Uniform Commercial Code it would avail Northwest nothing as McGrew was prohibited by the provisions of ERISA from granting it any\" security interest in such property. This issue was addressed by the court in In re Long Chevrolet, Inc., 79 B.R. 759 (N.D.Ill.1987). In doing so the court makes two points with which this court concurs. First, although 29 U.S.C. § 1144(a) of ERISA states it supersedes state laws insofar as they “related to” any employee benefit plan, as the quoted phrase has been interpreted by the United States Supreme Court a state commercial law generally authorizing security interests in property cannot be said to “relate to” the McGrew Retirement Plan. Like the debtor-in-possession in Long the trustee here “has not identified any provision or purpose of ERISA that is in any way inconsistent with the general commercial law principles of Article 9” of the Uniform Commercial Code as enacted in Oregon. Long, 79 B.R. at 763. Second, the language of 29 U.S.C. § 1103(c) (which is reflected in § 12.07 of the Retirement Plan) which requires restriction of the benefits of the plan to the participants has stated exceptions to" }, { "docid": "20271638", "title": "", "text": "recover [the surplus from an ERISA-qualified retirement plan] is a future estate, the reversion itself is a present, vested estate. As a. result, the employer’s reversionary interest falls within the broad reach of section 541(a) of the Bankruptcy Code and is considered property....” Id. at 211 (second alteration in original) (internal quotation marks omitted); see also id. (\"Property of the estate includes all interests, such as ... contingent interests and future interests, whether or not transferable by the debtor.” (quoting Prudential Lines, 928 F.2d at 572) (internal quotation marks omitted)). . We are not the only ones to find the Trans-Lines West line of cases wanting. See James S. Eustice & Joel D. Kuntz, Federal Income Taxation of S Corporations ¶ 5.08[1] (4th ed. 2001) (“These cases seem like little more than hard bankruptcy cases making bad tax law.”); Camilla Berit Galesi, Shareholders' Rights Regarding Termination of a Debtor Corporation’s S Status in a Bankruptcy Setting, 10 J. Bankr.L. & Prac. 157, 161-62 (2001) (“[D]ue to the \\Trans-Lines West] court’s misunderstanding of the rules governing S election and termination[ ] ... the court adopts an erroneous conception of the nature of a corporation’s interest in its S status.”); Richard A. Shaw, Taxing Shareholders on the Income of an S Corporation in Bankruptcy, 1 No. 6 Bus. Entities 40, 1999 WL 1419055, at *46 (1999) (\"In its haste to provide cash for creditors, the Ninth Circuit BAP in Bakersfield [Westar] and the Tennessee Bankruptcy Court in ... Trans-Lines West ... are simply creating a windfall for the bankruptcy estate at the expense of third parties who are not in the bankruptcy proceeding.”); id. (“The NOL cases are somewhat easier to accept ... [but] [t]he case for disrespecting the revocation of an S election is, in many ways, much more troublesome.”). . The reasoning of .the \"NOL-as-property” cases is itself not without flaws. Those cases looked, in part, to Congressional intent that \"property of the estate” be construed to “include[ ] all interests, such as ... contingent and future interests.” Prudential Lines, 928 F.2d at 572 (quoting H.R.Rep. No, 95-595, at 176" }, { "docid": "13915154", "title": "", "text": "its application. One of these exceptions is the provisions of 29 U.S.C. § 1344. That section authorizes return of excess trust funds to the employer on plan termination. The language of ERISA neither expressly prohibits, nor supports an interpretation that it prohibits, a grant by the employer of a security interest in its interest in such funds. Id. The trustee asserts Long is distinguishable from the proceeding herein on the facts. In Long the Plan was terminated pre-petition. The trustee asserts the debt- or probably knew the amount of the excess funds and may have used those funds as the basis for negotiation with the secured creditor thus raising an issue of bad faith. Because the debtor in Long had determined there would be excess funds and the amount thereof prior to granting a security interest in general intangibles to the creditor the Long debtor had a sufficient property interest pre-filing to which a security interest could attach. The court believes the trustee’s attempt to distinguish Long on the facts fails. First, the trustee assumes facts which do not specifically appear in the reported opinion (that is, the extent of the parties’ knowledge of the existence of excess funds and amount thereof at the time the security interest was granted to the creditor). Further, in addressing a preferential transfer issue, the Long court specifically states that the debtor acquired rights in the property (within the meaning of 11 U.S.C. § 547(e)(3)), through the statutory provisions of 29 U.S.C. § 1344(d) and the terms of the plan itself. That analysis is consistent with this court’s finding that McGrew obtained a present reversionary interest in the trust assets at the time it executed its Plan through the terms of § 10.01(d)(vi) as authorized by 29 U.S.C. § 1344(d)(1)(C). McGrew had sufficient rights in the collateral in 1980 within the meaning of O.R.S. 79.2030 to allow Northwest’s security interest to attach. The trustee states McGrew’s contingent possibility of a refund is simply not the kind of property interest which the authors of the Uniform Commercial Code (U.C.C.) intended to be treated as a" }, { "docid": "12249578", "title": "", "text": "court essentially to order Universal’s board to exercise its discretion to set off FCX’s indebtedness to Universal against FCX’s patronage certificates. Resolution of this issue requires a two-step analysis involving both state and federal law. The filing of a debtor’s petition in bankruptcy creates an estate comprised of the property listed in 11 U.S.C. § 541(a), including “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). Despite its broad definition of those interests of the debtor that become property of the estate, see In re Ryan, 15 B.R. 514, 517 (Bkrtcy.D.Md.1981) (noting that § 541(a) is “broad and all-embracing”); see also McLean v. Central States, Southeast and Southwest Areas Pension Fund, 762 F.2d 1204 (4th Cir.1985) (same as to § 541(a)(1)), neither § 541(a), nor any other Bankruptcy Code provision, answers the threshold questions of whether a debtor has an interest in a particular item of property and, if so, what the nature of that interest is. In re Farmers Markets, Inc., 792 F.2d 1400, 1402 (9th Cir.1986); 4 Collier on Bankruptcy ¶ 541.02, at 541-11 (15th ed. 1985) (The Bankruptcy Code does not “provide[ ] any rules for determining whether the debtor has an interest in property_”). The estate under § 541(a) succeeds only to those interests that the debtor had in property prior to commencement of the bankruptcy case. Creasy v. Coleman Furniture Corp., 763 F.2d 656, 662 (4th Cir.1985); see also Moody v. Amoco Oil Co., 734 F.2d 1200, 1213 (7th Cir.1984) (“[Whatever rights a debtor has in property at the commencement of the case continue in bankruptcy — no more, no less.”). The existence and nature of a debtor’s, and hence the estate’s, interest in property must be determined by resort to nonbankruptcy law, In re Polycorp Assoc., Inc., 47 B.R. 671, 673 (Bkrtcy.N.D.Cal.1985); see generally 4 Collier on Bankruptcy ¶ 541.01, at 541-10, 10-13 (The “existence and nature of the debtor’s interest in property ... are determined by nonbankruptcy law,” usually state law.) — either federal law, see, e.g., In re Massengill, 73" }, { "docid": "13915153", "title": "", "text": "ERISA from granting it any\" security interest in such property. This issue was addressed by the court in In re Long Chevrolet, Inc., 79 B.R. 759 (N.D.Ill.1987). In doing so the court makes two points with which this court concurs. First, although 29 U.S.C. § 1144(a) of ERISA states it supersedes state laws insofar as they “related to” any employee benefit plan, as the quoted phrase has been interpreted by the United States Supreme Court a state commercial law generally authorizing security interests in property cannot be said to “relate to” the McGrew Retirement Plan. Like the debtor-in-possession in Long the trustee here “has not identified any provision or purpose of ERISA that is in any way inconsistent with the general commercial law principles of Article 9” of the Uniform Commercial Code as enacted in Oregon. Long, 79 B.R. at 763. Second, the language of 29 U.S.C. § 1103(c) (which is reflected in § 12.07 of the Retirement Plan) which requires restriction of the benefits of the plan to the participants has stated exceptions to its application. One of these exceptions is the provisions of 29 U.S.C. § 1344. That section authorizes return of excess trust funds to the employer on plan termination. The language of ERISA neither expressly prohibits, nor supports an interpretation that it prohibits, a grant by the employer of a security interest in its interest in such funds. Id. The trustee asserts Long is distinguishable from the proceeding herein on the facts. In Long the Plan was terminated pre-petition. The trustee asserts the debt- or probably knew the amount of the excess funds and may have used those funds as the basis for negotiation with the secured creditor thus raising an issue of bad faith. Because the debtor in Long had determined there would be excess funds and the amount thereof prior to granting a security interest in general intangibles to the creditor the Long debtor had a sufficient property interest pre-filing to which a security interest could attach. The court believes the trustee’s attempt to distinguish Long on the facts fails. First, the trustee assumes" }, { "docid": "1086264", "title": "", "text": "but for certain exceptions not applicable to this proceeding, property of the estate includes “all legal or equitable interests of the debtor in property as of the commencement of the case.” Applying this provision to the facts before us, we must find that the Debtor’s reversionary interest in the Plan’s assets is an asset of the estate. Creasy v. Coleman Furniture Corp, 763 F.2d 656, 662 (4th Cir.1985) (“[t]he trustee acquires the rights that the corporate bankrupt possessed; therefore, the excess funds would be an asset in the bankrupt’s estate”). See also In re Bicoastal Corp., 136 B.R. 290, 295 (Bankr.M.D.Fla.1992). However, the estate’s reversionary interest does not give it a present right to part or all of the Plan’s assets. As previously noted, federal law provides that residual assets of an employer’s pension plan may be distributed to the employer if all of the plan’s liabilities to participants and their beneficiaries have been satisfied. 29 U.S.C. § 1344(d)(1)(A). Furthermore, the plan must specifically provide for such a distribution. 29 U.S.C. § 1344(d)(1)(C). In this case, the Plan Agreement provides that Debtor is entitled to the Plan’s excess assets only after (1) the Plan is terminated, and (2) all of the Plan’s liabilities have been satisfied. Neither of these prerequisites has been satisfied. First, the procedures that must be followed for the Plan to be terminated are set forth in 29 U.S.C. § 1341. While § 1341 has been amended several times during the pendency of this bankruptcy proceeding, it appears that at no time were all of the requirements for the termination of the Plan satisfied. Only by strictly complying with all of the provisions of § 1341 can the Plan be terminated. Phillips v. Bebber, 914 F.2d 31, 34 (4th Cir.1990). Second, numerous liabilities of the Plan remain unsatisfied, creating an uncertainty as to the exact amount of funds in the Plan (if any) that the Bankruptcy Trustee will be entitled to upon the Plan’s termination. The Bankruptcy Trustee will retain those transfers to the Plan that were voided as a consequence of this decision. Also, the Plan" }, { "docid": "20271637", "title": "", "text": "Segal was addressed only to the argument that an NOL carryback was not property of the estate at the commencement of the proceeding because \"no refund could be claimed from the Government until the end of the year” of filing, during which \"earnings by the bankrupt ... might diminish or eliminate the loss-carry-back refund claim....” Id. It does not Support the broad proposition that any contingent tax attribute can necessarily be labeled as \"property.” . We have not yet addressed the question of whether NOL carrybacks or carryforwards constitute property. The closest we have come to deciding the question was an issue arising under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq., rather than the I.R.C. In In re Fruehauf Trailer Corp., 444 F.3d 203 (3d Cir.2006), a debtor made an irrevocable election to increase pension benefits that denied the bankruptcy estate the ability to recoup an accumulated surplus in plan assets. We held that \"[t]his recoupment right is a transferable property interest” because, \"[a]lthough the right to recover [the surplus from an ERISA-qualified retirement plan] is a future estate, the reversion itself is a present, vested estate. As a. result, the employer’s reversionary interest falls within the broad reach of section 541(a) of the Bankruptcy Code and is considered property....” Id. at 211 (second alteration in original) (internal quotation marks omitted); see also id. (\"Property of the estate includes all interests, such as ... contingent interests and future interests, whether or not transferable by the debtor.” (quoting Prudential Lines, 928 F.2d at 572) (internal quotation marks omitted)). . We are not the only ones to find the Trans-Lines West line of cases wanting. See James S. Eustice & Joel D. Kuntz, Federal Income Taxation of S Corporations ¶ 5.08[1] (4th ed. 2001) (“These cases seem like little more than hard bankruptcy cases making bad tax law.”); Camilla Berit Galesi, Shareholders' Rights Regarding Termination of a Debtor Corporation’s S Status in a Bankruptcy Setting, 10 J. Bankr.L. & Prac. 157, 161-62 (2001) (“[D]ue to the \\Trans-Lines West] court’s misunderstanding of the rules governing" }, { "docid": "14795691", "title": "", "text": "The party bringing the fraudulent conveyance action bears the burden of proving each of these elements by a preponderance of the evidence. See Mellon Bank, N.A. v. Official Comm. of Unsecured Creditors (In re R.M.L., Inc.), 92 F.3d 139, 144 (3d Cir.1996) (hereafter “R.M.L. ”). There is no dispute here that the alleged transfer was made within one year of the filing of Fruehauf s bankruptcy petition and that Fruehauf was insolvent at that time. Therefore, the relevant issues are whether PTC satisfied its burden of proving that Fruehauf had a property interest, that the interest was transferred, and that the gains and losses as a result of the transfer were not of reasonably equivalent value. A. Property Interest The Bankruptcy Code defines property interests broadly, encompassing “all legal or equitable interests of the debt- or in property.” 11 U.S.C. § 541(a)(1). The Supreme Court has noted that “[t]he main thrust of [the Bankruptcy Code] is to secure for creditors everything of value the bankrupt may possess in alienable or leviable form when he files his petition. To this end the term ‘property’ has been construed most generously and an interest is not outside its reach because it is novel or contingent or because enjoyment must be postponed.” Segal v. Rochelle, 382 U.S. 375, 379, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966). Property of the estate “ ‘includes all interests, such as ... contingent interests and future interests, whether or not transferable by the debtor.’ ” In re Prudential Lines, Inc., 928 F.2d 565, 572 (2d Cir.1991) (quoting H.R.Rep. No. 95-595, 175-76 (1978)). It is also well established that “the mere ‘opportunity’ to receive an economic benefit in the future” is property with value under the Bankruptcy Code. R.M.L., 92 F.3d at 148. Under ERISA, an employer who sponsors a qualifying retirement plan is entitled to recoup any surplus upon termination of the plan. See 29 U.S.C. § 1344(d)(1); Ashenbaugh v. Crucible, Inc., 1975 Salaried Retirement Plan, 854 F.2d 1516, 1523 n. 9 (3d Cir.1988). This recoupment right is a transferable property interest. See, e.g., Creasy v. Coleman Furniture Corp.," }, { "docid": "13915150", "title": "", "text": "and will take possession upon the natural termination of the prior estate. On the other hand a possibility of reverter only exists where there has been created an estate in fee simple determinable. A determinable fee has all the attributes of a fee simple but may end by some act circumscribing its continuance. Estates § 22. In order to identify the nature of the prior interest granted to the Retirement Plan and Trust beneficiaries by McGrew when it executed those documents this court has examined the structure and language of the Plan in its entirety. When McGrew created the Plan it granted all participants, upon plan termination, fully vested accrued benefits as defined by § 1.01 of the Plan. § 10.01. It did not grant to the participants, upon termination, all the funds held in the trust (which would constitute all contributions and rollovers plus interest thereon less benefits earlier distributed.) The contributions were based on actuarial calculations which are known to vary. § 4.02. Thus the trust funds could not without qualification be identical to the participants’ fully vested accrued benefits. Any trust funds existing after distribution to participants of their interest (fully vested accrued benefits) would auto matically be reversionary funds at common law. The grantor-employer’s reversionary interest in the assets of a single-employer retirement plan and trust does not arise by operation of law. It is authorized by the provisions of 29 U.S.C. § 1344(d)(1) if the conditions of that subsection are met. There is no controversy that McGrew has met those conditions. The trustee argues that until the post-filing plan termination it was not known either whether, or to what extent, trust funds would return to the employer. Thus at the time McGrew filed its bankruptcy petition its interest, if any, in the funds was too remote or contingent for a security interest to attach. This court has already identified McGrew’s interest in the trust funds as a reversion. Reversions are recognized present estates in property and are neither remote nor contingent. As reversions may exist in personalty and personalty, unlike real property, is subject to" }, { "docid": "13915151", "title": "", "text": "to the participants’ fully vested accrued benefits. Any trust funds existing after distribution to participants of their interest (fully vested accrued benefits) would auto matically be reversionary funds at common law. The grantor-employer’s reversionary interest in the assets of a single-employer retirement plan and trust does not arise by operation of law. It is authorized by the provisions of 29 U.S.C. § 1344(d)(1) if the conditions of that subsection are met. There is no controversy that McGrew has met those conditions. The trustee argues that until the post-filing plan termination it was not known either whether, or to what extent, trust funds would return to the employer. Thus at the time McGrew filed its bankruptcy petition its interest, if any, in the funds was too remote or contingent for a security interest to attach. This court has already identified McGrew’s interest in the trust funds as a reversion. Reversions are recognized present estates in property and are neither remote nor contingent. As reversions may exist in personalty and personalty, unlike real property, is subject to being totally consumed, it is logical one may hold a vested reversionary interest with enjoyment postponed with a present value which, upon elimination of the prior posses-sory interest at some future date, may then be valueless. The trustee also asserts that McGrew held no alienable property right in the trust fund prior to the bankruptcy filing. Northwest could not, therefore, in 1980, obtain a security interest in any property right which McGrew might have had in the trust fund. There is nothing in the nature of McGrew’s interest in the trust fund, as identified by the court, which makes the interest inalienable. Reversions are alienable. Thus one must look elsewhere for the source of any restrictions on the alienability of McGrew’s reversionary interest. The trustee argues that to the extent McGrew might otherwise be found to have had a property interest in the fund in 1980 which could be categorized under Article 9 of the Oregon’s version of the Uniform Commercial Code it would avail Northwest nothing as McGrew was prohibited by the provisions of" }, { "docid": "23256", "title": "", "text": "actuary to the Plan projected a surplus of approximately $10.6 million in the Plan. (PL’s Ex. 23.) In November 1996, Fruehauf estimated the cost of the Third Amendment to be approximately $2.4 million. (D.I. 118 at 6, ¶ 11.) Even assuming there was no surplus in the Plan at the time of the transfer in September 1996, under ERISA and section 9.4 of the Plan, Fruehauf, as the Plan’s sponsor, was entitled to any surplus upon termination of the Plan. (PL's Ex. 2 at 3.) Future interests are property interests under the Bankruptcy Code. See In re Wingspread Corp., 155 B.R. 658, 664 (Bankr.S.D.N.Y.1993). Thus, surplus in the Plan was a property interest of Fruehauf. See id.; Creasy v. Coleman Furniture Corp., 763 F.2d 656, 662 (4th Cir.1985). As such, the Court finds that Fruehaufs interest in the Plan surplus falls within the definitional reach of section 541(a) of the Bankruptcy Code and is considered property of Fruehaufs estate. See In re Wingspread Corp., 155 B.R. at 664; Creasy, 763 F.2d at 662. For these reasons, the Court concludes that Fruehauf had an interest in property within the meaning of Section 548(a) of the Bankruptcy Code. B.Transferred within One Year 1. Transfer The Class Defendants contend that the transfer of Fruehaufs interest in the Plan surplus did not occur until March 31, 1997, when the Class Defendants earned the right to the Third Amendment benefits. Pension Transfer contends that, though the interest was contingent, the adoption of the Third Amendment conveyed a beneficial interest in Fruehaufs property as of the date of the adoption. Pension Transfer further contends that, under ERISA, a liability accrues upon awarding the benefit, whether or not the Class Defendants then earned them. Section 101(54) of the Bankruptcy Code defines “transfer” to mean “every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with property or with an interest in property....” 11 U.S.C. § 101(54). Section 548(d)(1) provides that “if such transfer is not ... perfected before the commencement of the case, such transfer is made immediately before the date" }, { "docid": "20271640", "title": "", "text": "(1978), reprinted in 1978 U.S.C.C.A.N. 5963, 6136) (internal quotation marks omitted); see also Feiler, 218 F.3d at 956-57 (quoting same and suggesting that “Congress affirmatively adopted the Segal holding when it enacted the present Bankruptcy Code”). But Code; § 541 contains no reference to “contingent” or \"future” interests and refers only to “legal or equitable interests of the debtor in property as of the commencement of the case.\" 11 U.S.C. § 541(a)(1) (emphasis added). Moreover, “the crucial analytical key [is] not ... an' abstract articulation of the statute's purpose, but ... an analysis of the nature of the asset involved in light of those principles.” Kokoszka v. Belford, 417 U.S. 642, 646, 94 S.Ct. 2431, 41 L.Ed.2d 374 (1974). . To /speak of the revocation, as a \"disposition,” as Trans-Lines West does, is to assume that the tax status is a property interest, which is exactly the issue in contention. . There may, of 'Course, be contractual agreements among' the shareholders limiting the alienability of shares. . Our holding in Fruehauf Trailer, see supra note 16, is not to the contrary. In that case, we held that a corporate debtor’s right to recoup an accumulated surplus in its pension plan was property, even though the plan trustee had the right to make an irrevocable election under ERISA to increase pension benefits, denying the debtor the benefit of that surplus. See 444 F.3d at 211 (noting that property may be \"contingent” and that \"the mere opportunity to receive an economic benefit in the future is property with value under the Bankruptcy Code” (internal quotation marks omitted)). But in that case the debtor had a contractual right to recover the surplus, which we found to be a \"future estate, [in which] the reversion itself is a present, vested estate,”- and one that was \"transferable and alienable.” Id. As a result, we held that the -debtor’s \"reversionary interest falls within the broad reach of section 541(a) of the Bank ruptcy Code and is considered property of the debtor's estate.” Id. An S-corp has no such contractual or otherwise \"reversionary” interest in its tax" } ]

[ { "docid": "2482790", "title": "", "text": "other two House districts (districts 90 and 96) are to be properly apportioned. It is therefore the conclusion of the court that the plaintiffs in both cases are entitled to a declaration that the districts involved here are unconstitutionally malapportioned and are entitled to injunctive relief requiring the reconstitution of these districts as they were constituted pursuant to the 1973 general reapportionment. Plaintiffs seek an award of attorney’s fees pursuant to the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988 as amended. Under such provision, a court may award such fees in an action brought to enforce 42 U.S.C. § 1983 as here. Moreover, in Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), the Court held that Congress may, pursuant to its' enforcement authority created by § 5 of the Fourteenth Amendment, authorize the award of damages or fees against a State despite the Eleventh Amendment; and the Civil Rights Attorney’s Fees Awards Act of 1976 may be applied to cases pending, as here, at the time of its enactment. Rainey v. Jackson State College, 551 F.2d 672 (5th Cir. 1977); Finney v. Hutto, 548 F.2d 740 (8th Cir. 1977). Accordingly, this court is satisfied that it may award attorney’s fees against the State of Tennessee in this action. This court further concludes that such fees should be awarded. In this case, as a result of the 1973 general reapportionment by the legislature, the State had valid plans in effect, plans that had actually had prior approval by the three-judge court sitting at Nashville. Then, for no reasons based on a rational State policy, the legislature, in 1976, made this ad hoc partial reapportionment which caused these Senatorial and House districts to deviate more from the optimum than they had prior to such reapportionment. In turn this made it necessary for these plaintiffs to employ counsel and obtain the aid of this court to correct this clearly illegal ad hoc reapportionment. If the parties cannot stipulate as to the amount of a reasonable attorney fee in each case within ten days," } ]

[ { "docid": "23660585", "title": "", "text": "1983 the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs. 42 U.S.C. § 1988 (emphasis added). Moreover, the legislative history is not inconsistent with this plain wording. See S.Rep.No.94-1011, 94th Cong., 2d Sess. 1 (1976), reprinted in [1976] U.S.Code Cong. & Ad.News 5909. In addressing the reach of the statute, the Senate report explicitly states that section 1988 is “limited to cases arising under our civil rights laws” and that the award of attorney’s fees is to be governed by the principle established in Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968), that “[a] party seeking to enforce the rights protected by [inter alia, section 1983], if successful, ‘should ordinarily recover an attorney’s fee unless' special circumstances would render such an award unjust.’ ” S.Rep.No.94-1011, 94th Cong., 2d Sess. 4 (1976), reprinted in [1976] U.S.Code Cong. & Ad.News 5912 (emphasis added). Despite the clear wording of the statute and its legislative history, the District Judge raised the novel theory that in “exceptional circumstances” a court should have discretion to award attorney’s fees under section 1988 to a party who does not succeed on his civil rights claim but who prevails on a pendent claim which “substantially vindicates his constitutional quest.” Meriwether v. Sherwood, 514 F.Supp. 433, 436 (S.D.N.Y.1981). In Meriwether, Judge Sofaer maintained that the present case is an appropriate one for the exercise of this discretion. He asserted that in light of the close legal nexus between a section 1983 claim and a malicious prosecution claim, a plaintiff who succeeds on the latter, especially where punitive damages are awarded, should be treated as a prevailing party for purposes of section 1988. Id. at 437. The teachings of the Supreme Court in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), foreclose this expansive interpretation of section 1988. The “American Rule” is that the “prevailing” litigant is not ordinarily entitled to collect attorney’s fees from the losing" }, { "docid": "11894996", "title": "", "text": "prior ruling that the issues raised by the plaintiffs were not ripe for adjudication due to the tentative nature of the test results. “Since defendants could yet decide to weigh the questions differently, to change the cutoff score, to weight [sic] the written exam differently as a factor in the hiring process, or to otherwise alter the scores and their use, there are as yet simply no final examination results.” Stewart v. Hannon, No. 74 C 2466 (N.D.Ill. May 19, 1980). Certainly by May, 1980, when amended Count II was before the district court, a case or controversy existed between the parties. Because the plaintiffs would have sustained immediate injury from the application of the disputed examination results and because that injury would have been redressed by the relief requested, the requirement of ripeness was satisfied. See Duke Power Co. v. Carolina Env. Study Group, 438 U.S. 59, 81, 98 S.Ct. 2620, 2634, 57 L.Ed.2d 595 (1978). III. We turn then to the district court’s alternative basis for refusing attorneys’ fees to the plaintiffs. Section 706(k) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k), and the Civil Rights Attorneys’ Fees Awards Act of 1976, 42 U.S.C. § 1988, allow for the recovery of attorneys’ fees and costs by prevailing parties in suits brought under Title VII and under the Civil Rights Act of 1866 and 1871, 42 U.S.C. §§ 1981, 1983. The applicable sections of those Acts provide that “the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs.” 42 U.S.C. §§ 1988, 2000e-5(k). The statutory purpose of the provisions is to promote private enforcement of the Civil Rights Acts. S.Rep.No. 94-1011, 94th Cong. 2d Sess. 5, reprinted in [1976] U.S. Code Cong. & Ad. News 5908, 5912. Although the statutory language makes the award of attorneys’ fees discretionary, the general rule which has developed indicates that the prevailing party “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400," }, { "docid": "15195627", "title": "", "text": "a motion to dismiss plaintiffs’ cause of action for mootness. Plaintiffs did not oppose defendant’s motion and on September 9, 1996, the court dismissed the action without prejudice. II. DISCUSSION 42 U.S.C. § 1988(b) provides that “[i]n any action or proceeding to enforce a provision of seetion[ ] ... 1983 ... of this title, ... the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs.” The purpose of the statute is to “ensure ‘effective access to the judicial process’ for persons with civil rights grievances.” Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 1937, 76 L.Ed.2d 40 (1983) (quoting H.R.Rep. No. 94-1558 (1976)). In light of the statute’s broad purpose, a prevailing plaintiff “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” Id. at 429, 103 S.Ct. at 1937 (quoting Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966-67, 19 L.Ed.2d 1263 (1968)). SRS denies that plaintiffs were a “prevailing party” as required by 42 U.S.C. § 1988(b) to recover attorney’s fees. Defendant points out that the court’s September 1996 judgment expressly dismissed the case. Defendant also notes that the court denied plaintiffs’ motions for preliminary injunction and partial summary judgment. This court has held that a plaintiff may be a “prevailing party” under 42 U.S.C. § 1988(b) even where there has been no judicial determination that the plaintiff’s rights have been violated. T.Y. ex rel. Petty v. Board of County Comm’rs, 912 F.Supp. 1416, 1419 (D.Kan.1995). See Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2574-75, 65 L.Ed.2d 653 (1980); Savidge v. Fincannon, 836 F.2d 898, 905 (5th Cir.1988)(noting that a plaintiff may prevail “and thus be presumptively entitled to fees” in a case that becomes moot before judgment on the merits.) In T.Y., this court found that the legislative history of 42 U.S.C. § 1988(b) indicates Congress intended such an inteipretation. See S.Rep. No. 94-1011 (1976), U.S. Code Cong. & Admin. News 1976, pp. 5908, 5912 (“for purposes of the award of counsel" }, { "docid": "7327567", "title": "", "text": "defect does not supply the authority for the Court to rewrite the clear statutory scheme and invent exceptions to it. Id. at 812. We hope that in the near future, HUD will promulgate new regulations or Congress will enact a new statute. IV. Attorney’s Fees. Two questions with respect to attorney’s fees are raised on this appeal. The plaintiffs seek an award of attorney’s fees for the work performed on appeal should they prevail. The defendants contend that the trial court erred in denying their motion for attorney’s fees as the prevailing party under the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988. They raise the issue of whether the standard for awarding attorney’s fees under the Act should be the same for both prevailing plaintiffs and prevailing defendants. Section 1988 provides that: [i]n any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title * * * the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs. The legislative history of § 1988 makes it clear that a plaintiff successful in asserting rights under the statutes covered by § 1988 should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust. S.Rep.No.94-1011, 94th Cong., 2d Sess. 4, reprinted in [1976] U.S.Code Cong. & Admin.News, pp. 5908, 5912, quoting Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968). See Wharton v. Knefel, 562 F.2d 550 (8th Cir. 1977). We feel that this is an appropriate case for an award of attorney’s fees on appeal as the plaintiffs prevailed on appeal with respect to the maintenance of an action under § 1983. Accordingly, we award plaintiffs’ attorney’s fees for the appellate portion of this litigation in the sum of $1,000. Since we have reversed the decision of the trial court in part and remanded this action for further proceedings, we need not reach the question raised by the defendants of the standard to" }, { "docid": "5721316", "title": "", "text": "to the contract’s terms); O’Grady v. City of Montpelier, supra, 474 F.Supp. at 187 (private defendant contracting with city not liable under § 1983 for mere performance under municipal contract); York Cove Corporation v. United States, 317 F.Supp. 799, 810 (E.D.Va.1970) (to same effect). Hence, without a showing that The Gan was subject to liability under § 1983, the award of fees under § 1988 against The Gan was not warranted. B. Special Circumstances Moreover, even were The Gan subject to liability as a state actor under § 1983, special circumstances present in this case indicate that the district court abused its discretion in awarding fees against The Gan pursuant to § 1988. The Civil Rights Attorney’s Fees Awards Act, Pub.L. No. 94-559, 90 Stat. 2641, expressly provides that “the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs.” 42 U.S.C. § 1988 (emphasis added). Thus, the awarding of fees is permitted in the exercise of discretion but is not mandated in all cases. Further, the legislative history reflects Congress’ view that prevailing parties “ ‘should ordinarily recover an attorney’s fee unless special circumstances would render an award unjust’ ”, S.Rep. No. 1011, 94th Cong., 2d Sess., reprinted in 1976 U.S.Code Cong. & Ad.News 5908, 5912 (quoting Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968) (per curiam); Kerr v. Quinn, 692 F.2d 875, 877 (2d Cir. 1982). While the statutory language creates a presumption in favor of fee awards, see Zarcone v. Perry, 581 F.2d 1039, 1042 (2d Cir.1978), cert. denied, 439 U.S. 1072, 99 S.Ct. 843, 59 L.Ed.2d 38 (1979), this presumption is not irrebutable and should not be applied automatically and rigidly. We agree with the district court that plaintiffs are the “prevailing parties” within the rubric of Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). There is also no doubt that this litigation was instituted to protect valuable constitutional rights, see Riddell v. National Democratic Party, 624 F.2d 539, 546 (5th Cir." }, { "docid": "8356838", "title": "", "text": "MEMORANDUM-DECISION AND ORDER MUNSON, Chief Judge. Plaintiff brought this civil rights action for injunctive and monetary relief to protect his position as City Clerk of the City of Syracuse, New York. This Court found in favor of plaintiff, and enjoined defendants-councilors from dismissing or failing to reelect him solely on grounds of his political affiliation. 530 F.Supp. 1165. The Court assumes the reader’s familiarity with that opinion. Presently before the Court is plaintiff’s motion for a determination of damages and costs. I. Plaintiff seeks only attorneys’ fees as a part of his costs. 42 U.S.C. § 1988 (1976), as amended by Equal Access to Justice Act, Pub.L.N0.96-481, § 205(c), 94 Stat. 2330 (1980), provides in pertinent part that “[i]n any action or proceeding to enforce a provision of [42 U.S.C. § 1983, inter alia], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” Section 1988’s legislative history indicates that counsel fees should ordinarily be awarded to prevailing litigants, unless special circumstances would render an award unjust. S.Rep.No.94-1011, 94th Cong., 2d Sess. 4, reprinted in 1976 U.S. Code Cong. & Ad.News 5908, 5912 [Senate Report] (quoting Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968) (per curiam)). This liberal policy reflects Congress’ purpose not only to penalize constitutional violators but to encourage resort to courts to seek judicial relief for such transgressions. Id.; Nadeau v. Helgemoe, 581 F.2d 275, 280 (1st Cir. 1978). Here, a majority of the Syracuse Common Council violated plaintiff’s First Amendment rights of freedom of belief and association by refusing to rehire Visser solely because of his political affiliations. 530 F.Supp. at 1173. If this Court determines, however, that the Republicans’ action was “legislative,” Supreme Court of Virginia v. Consumers Union of United States, Inc., 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980), precludes imposing counsel fees on them personally. Properly interpreted, the Common Council majority’s action falls outside the scope of absolute legislative immunity. Supreme Court language discusses the extent of" }, { "docid": "22993738", "title": "", "text": "merits and for time spent litigating the fee question. They have not appealed from the district court’s refusal to supplement the original award. On their cross-appeal, defendants contest the awarding of fees for time spent by plaintiffs’ attorneys subsequent to the granting of summary judgment. We affirm this post-summary judgment award of the district court, and we hold that plaintiffs’ attorneys are also entitled to compensation for their appellate work on the merits and for time expended in establishing their entitlement to fees. The Civil Rights Attorney’s Fees Awards Act declares that: In any action or proceeding to enforce a provision of §§ 1977, 1978, 1979, 1980, and 1981 of the Revised Statutes [42 U.S.C. §§ 1981-1983, 1985, 1986], ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs. 90 Stat. 2641, 42 U.S.C. § 1988. Although the Act on its face provides that the decision to award attorney’s fees is a matter committed to the discretion of the court, we observed in Dawson v. Pastrick, 600 F.2d 70, 79 (7th Cir. 1979), that: [T]he history of the provision makes it clear that the trial court’s discretion is narrow: “It is intended that the standards for awarding fees be generally the same as under the fee provisions of the 1964 Civil Rights Act. A party seeking to enforce the rights protected by the statutes covered by S. 2278, if successful, ‘should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.’ Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). S.Rep.No.94-1011, 94th Cong., 2d Sess. 4, reprinted in [1976] U.S. Code Cong. & Admin.News 5912.” Thus, “a prevailing plaintiff should receive fees [under the Act] almost as a matter of course.” Davis v. Murphy, 587 F.2d 362, 364 (7th Cir. 1978); Dawson, 600 F.2d at 79. Plaintiffs’ status as the prevailing party in this case has already been established in Bond I. 504 F.2d at 1251. Turning first to the district court’s" }, { "docid": "16485218", "title": "", "text": "II or VII of the Civil Rights Act of 1964, 42 U.S.C.A. §§ 2000a~3(b), 2000e -5(k), both of which specifically provide for attorney’s fees, but could not allow fees in similar actions brought under 42 U.S.C.A. §§ 1981 or 1983. Congress responded to this anomaly by amending 42 U.S.C.A. § 1988 to provide: In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of [title 42] the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs. The legislative history of the Act makes clear that Congress intended that a prevailing plaintiff claiming under § 1988 “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” S.Rep.No.94-1011, 94th Cong. 2d Sess. 5, reprinted in [1976] U.S. Code Cong. & Admin.News, pp. 5908, 5912, quoting Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968). Newman had first enunciated this standard for the allowance of attorney’s fees in a case arising under Title II of the Civil Rights Act of 1964. The standard has since been found applicable to attorney’s fee claims in Title VII cases. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). Applying this standard to the circumstances of this case, the district court did not abuse its discretion in holding that an award of counsel fees against the school district would be unjust. First, it is apparent from the legislative history of the Civil Rights Attorney’s Fees Awards Act of 1976 that Congress’ overriding concern was to encourage individuals, particularly members of racial minorities, to seek relief from invidious discrimination based on race, sex, religion, wealth, and other inherently offensive criteria. See Brown v. Culpepper, 559 F.2d 274, 278 (5th Cir. 1977); S.Rep.No.94-1011, 94th Cong. 2d Sess. 5, reprinted in [1976] U.S.Code Cong. & Admin.News, p. 5908, 122 Cong.Rec. ¶ 1705 (daily ed. Sept. 29, 1976) (remarks of Sen. Kennedy). When enacted in 1925, the Texas statute was viewed by the Texas" }, { "docid": "1953116", "title": "", "text": "29, 1976) (remarks of Senator Kennedy). . 42 U.S.C. § 2000a-3(b) provides as follows: “In any action commenced pursuant to this subchapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, and the United States shall be liable for costs the same as a private person.” . S.2278, 94th Cong., 2d Sess. (1976). . The House report reached the same conclusion regarding the standard by which an award would be made. The second key feature of the bill is its mandate that fees are only to be allowed in the discretion of the court. Congress has passed many statutes requiring that fees be awarded to a prevailing party. Again the Committee [on the Judiciary] adopted a more moderate approach here by leaving the matter to the discretion of the judge, guided of course by the case law interpreting similar attorney’s fee provisions. ****** The Committee intends that, at a minimum, existing judicial standards, to which ample reference is made in this report, should guide the courts in construing [this bill]. H.R.Rep.No.94-1558, 94th Cong., 2d Sess. 8 (1976) (footnote omitted; emphasis in original). The same report quoted from Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968) as the existing judicial standard for an award of fees to a prevailing plaintiff: “[A] prevailing plaintiff ‘should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.’ ” H.R.Rep.No.94-1558, supra, at 6. Representative Seiberling, the original congressional sponsor of legislation to authorize the awarding of attorneys’ fees in civil rights cases, expressed a similar understanding; [T]he civil rights attorneys’ fee legislation which I introduced — H.R.8220, with 16 cosponsors — called for the mandatory award of attorneys’ fees to prevailing plaintiffs, because I felt that the awards should be automatic except in the most extraordinary circumstances. I understand that [this bill] will codify that view as to prevailing plaintiffs, following the Piggie Park guidelines. 122 Cong.Rec.H12,165 (daily ed. Oct. 1, 1976) (remarks of Rep. Seiberling). See" }, { "docid": "2380149", "title": "", "text": "SETH, Chief Judge. Appellant challenged the constitutionality of a city ordinance and prevailed. The ordinance conditioned the offering of religious matter door-to-door upon obtaining a permit. The trial court found unbridled discretion in the sheriff to disapprove such permits and accordingly held the ordinance unconstitutional. Subsequently, appellant filed a motion for an award of reasonable attorney’s fees pursuant to 42 U.S.C. § 1988. The trial judge denied the motion. The sole issue on appeal is whether the trial judge erred in denying the motion for attorney’s fees. A prevailing party in a civil rights action such as this is ordinarily entitled to reasonable attorney’s fees, 42 U.S.C. § 1988, unless special circumstances would render such an award unjust. Newman v. Piggie Park Enterprises, 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263. Congress contemplated this standard in enacting the attorney’s fee award amendment to § 1988. S.Rep.No. 1011, 94th Cong., 2d Sess. 4, reprinted in [1976] U.S.Code Cong. & Admin.News, p. 5908. This in part states: “It is intended that the standards for awarding fees be generally the same as under the fee provisions of the 1964 Civil Rights Act. A party seeking to enforce the rights protected by the statutes covered by S.2278, if successful, ‘should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.’ Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 [88 S.Ct. 964, 19 L.Ed.2d 1263] (1968).” See Francia v. White, 594 F.2d 778 (10th Cir.). 42 U.S.C. § 1988 reads in applicable part: “In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” The lower court based its denial of the motion for attorney’s fees on its finding that defendants acted in good faith and that an award of attorney’s fees would be unjust. The attorney’s fee amendment to § 1988 contains no suggestion that there is a need to establish" }, { "docid": "22312855", "title": "", "text": "PHILLIPS, Circuit Judge: Two federally-funded farmworkers service organizations and one employee of each brought suit in the Eastern District of Virginia under 42 U.S.C. § 1983 against two farmers to obtain access to the migrant laborers housed on the defendants’ farm. During a hearing before the district court on plaintiffs’ motion for a preliminary injunction, the possibility that the parties could settle their dispute became apparent. At the district court’s suggestion a plan was agreed upon whereby employees of the service organizations would be permitted to enter defendants’ land to provide services for the migrant laborers housed there. The details of the plan, which was incorporated into a consent judgment, are set forth in the margin. Plaintiffs then filed a motion in the district court for attorney’s fees under the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988. The district court, without making any explicit findings of fact, disallowed any such award, relying on its discretion under the statute and on the fact that both sides had benefited from the consent judgment. We vacate and remand for factual findings. The Civil Rights Attorney’s Fees Awards Act of 1976 provides that in any action under 42 U.S.C. § 1983, the district court, “in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” 42 U.S.C. § 1988. This posits two essential inquiries: whether the fee claimant is the “prevailing party”; and, if so, whether in the court’s informed'discretion, a fee should be awarded. The discretion of the district court in deciding whether to award attorney’s fees to a prevailing party is narrowly limited. Both the Senate and House reports that accompanied the 1976 Act quote the controlling standard from Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968) (per .curiam). A prevailing plaintiff “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” Id. at 402, 88 S.Ct. at 966, quoted in S.Rep.No.1011, 94th Cong., 2d Sess. 4, reprinted in [1976] U.S.Code Cong. &" }, { "docid": "795344", "title": "", "text": "form of government with seven council members elected from single-member districts or wards. This time the referendum passed, with 65 percent of those participating voting for the change. The passage of this referendum accomplished the two principle goals of Plaintiffs’ lawsuit: (1) it effectively brought an end to at-large voting for the members of the Jackson City Council, and (2) it provided for the election of council members from single-member districts or wards. The entitlement of the Plaintiffs to a court award of reasonable attorneys’ fees and litigation expenses is determined by reference to both Section 14(e) of the Voting Rights Act, 42 U.S.C. § 1973l(e), and the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988. 42 U.S.C. § 1973l (e) provides: In any action or proceeding to enforce the voting guarantees of the fourteenth or fifteenth amendments, the Court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs. Similarly, 42 U.S.C. § 1988 provides in relevant part: In any action or proceeding to enforce a provision of sections 1981, 1982, 1984, 1985, and 1986 of this title, title IX of public law 92-318, or title VI of the Civil Rights Act of 1964, the Court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorneys’ fee as part of the costs. In enacting both of these statutes, Congress directed the prevailing parties “should ordinarily recover an attorneys’ fee unless special circumstances would render such an award unjust.” S.Rep. No. 94-295, 94th Cong., 1st Sess. 40 (1975), reprinted in 1975 U.S.Code Cong. & Ad. News 774, 807 (Section 1973Z (e); S.Rep. No. 94-1011, 94th Cong., 2d Sess. 4 (1976), reprinted in 1976 U.S.Code Cong. & Ad. News 5908, 5912. Plaintiffs are “prevailing parties” within the meaning of these statutes when they accomplish the goals of their litigation even though they obtain no judicial relief. The legislative history of both statutes make it clear that Congress intended that a litigant may prevail outside of the courts and still" }, { "docid": "11894997", "title": "", "text": "706(k) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k), and the Civil Rights Attorneys’ Fees Awards Act of 1976, 42 U.S.C. § 1988, allow for the recovery of attorneys’ fees and costs by prevailing parties in suits brought under Title VII and under the Civil Rights Act of 1866 and 1871, 42 U.S.C. §§ 1981, 1983. The applicable sections of those Acts provide that “the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs.” 42 U.S.C. §§ 1988, 2000e-5(k). The statutory purpose of the provisions is to promote private enforcement of the Civil Rights Acts. S.Rep.No. 94-1011, 94th Cong. 2d Sess. 5, reprinted in [1976] U.S. Code Cong. & Ad. News 5908, 5912. Although the statutory language makes the award of attorneys’ fees discretionary, the general rule which has developed indicates that the prevailing party “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). That statement was further explained in N.Y. Gaslight Club, Inc. v. Kerry, 447 U.S. 54, 100 S.Ct. 2024, 64 L.Ed.2d 723 (1980): [I]t is clear that one of Congress’ primary purposes in enacting ... [Section 706(k) ] was to ‘make it easier for a plaintiff of limited means to bring a meritorious suit.’... Because Congress has cast the Title VII plaintiff in the roll of ‘a private attorney general,’ vindicating a policy ‘of the highest priority,’ a prevailing plaintiff ‘ordinarily is to be awarded attorney’s fees in all but special circumstances.’ [Citations omitted.] It is clear that Congress intended to facilitate the bringing of discrimination complaints. 447 U.S. at 63, 100 S.Ct. at 2030. This court has interpreted Newman and the applicable legislative history to indicate that “[a] prevailing plaintiff in a § 1983 action should receive fees almost as a matter of course....” Busch e v. Burkee, 649 F.2d 509, 521 (7th Cir.), cert. denied, 50 U.S.L.W. 3278 (Oct. 13, 1981) (quoting Davis v. Murphy," }, { "docid": "23680956", "title": "", "text": "in actions under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k) states, In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person. A similar provision added to 42 U.S.C. § 1988 in 1976 applies to cases under other Civil Rights Act sections, including 42 U.S.C. §§ 1981, 1983, 1985, and 2000d et seq., and states, “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” Although in plain language these statutes declare that the award of attorneys’ fees is within the court’s discretion, most courts considering these and similar civil rights statutes have held the scope of discretion is quite narrow. In Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968), the Supreme Court refused to hold that under 42 U.S.C. § 2000a-3(b) attorneys’ fees should be awarded only when defendant acts in bad faith. Emphasizing the important policy behind the Civil Rights Act of encouraging plaintiffs to act as private attorneys general, the Court declared that “one who succeeds in obtaining an injunction under that Title [II] should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” Id. at 402, 88 S.Ct. at 966. Later, in Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975), the Supreme Court stated in dictum, “There is, of course, an equally strong public interest in having injunctive actions brought under Title VII, to eradicate discriminatory employment practices. But this interest can be vindicated by applying the Piggie Park standard to the attorneys' fees provision of Title VII, 42 U.S.C. § 2000e-5(k) . . . .” Id. at 415, 95 S.Ct. at 2370 (emphasis in original). Cf. Northcross v. Board of Educ., 412 U.S." }, { "docid": "22312856", "title": "", "text": "judgment. We vacate and remand for factual findings. The Civil Rights Attorney’s Fees Awards Act of 1976 provides that in any action under 42 U.S.C. § 1983, the district court, “in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” 42 U.S.C. § 1988. This posits two essential inquiries: whether the fee claimant is the “prevailing party”; and, if so, whether in the court’s informed'discretion, a fee should be awarded. The discretion of the district court in deciding whether to award attorney’s fees to a prevailing party is narrowly limited. Both the Senate and House reports that accompanied the 1976 Act quote the controlling standard from Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968) (per .curiam). A prevailing plaintiff “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” Id. at 402, 88 S.Ct. at 966, quoted in S.Rep.No.1011, 94th Cong., 2d Sess. 4, reprinted in [1976] U.S.Code Cong. & Admin.News 5908, 5912; H.R.Rep.No. 1558, 94th Cong., 2d Sess. 6. The Fifth Circuit has similarly interpreted the 1976 Act. Brown v. Culpepper, 559 F.2d 274, 277 (5th Cir. 1977). Illustrative of “special circumstances” sufficient to justify the discretionary denial of an award of attorneys fees to a prevailing party are those found by this Court in Chastang v. Flynn & Emrich Co., 541 F.2d 1040, 1045 (4th Cir. 1976), a sex discrimination suit under Title VII of the 1964 Civil Rights Act. There the illegal discrimination was incorporated in a profit-sharing and retirement plan that had been adopted when such discrimination was legal, that could not be unilaterally modified by the defendants, and that had been amended before the litigation began. It could be that such special circumstances exist in the instant case, but they are not apparent on the record nor supported by any formal findings and conclusions by the district court. The other reason offered by the district court in refusing to make an award was that the consent judgment benefited both parties" }, { "docid": "23660584", "title": "", "text": "Like the Fourth Circuit we find nothing in the plain language, the legislative history or the judicial interpretations of section 1988 “require[s] or justifies]” the award of fees to a party who lost on the constitutional claim after a plenary trial, Haywood v. Ball, 634 F.2d 740, 743 (4th Cir. 1980); Bunting v. City of Columbia, 639 F.2d 1090, 1095 (4th Cir. 1981). In interpreting section 1988, the starting point of our inquiry is the language of the statute. See Ernst & Ernst v. Hochfelder, 425 U.S. 185, 197, 96 S.Ct. 1375, 1383, 47 L.Ed.2d 778 (1976); Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756, 95 S.Ct. 1917, 1935, 44 L.Ed.2d 539 (1975) (Powell, J., concurring). “Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.” Consumer Products Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). The plain language of section 1988 is unambiguous. It provides that in an action to enforce, inter alia, section 1983 the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs. 42 U.S.C. § 1988 (emphasis added). Moreover, the legislative history is not inconsistent with this plain wording. See S.Rep.No.94-1011, 94th Cong., 2d Sess. 1 (1976), reprinted in [1976] U.S.Code Cong. & Ad.News 5909. In addressing the reach of the statute, the Senate report explicitly states that section 1988 is “limited to cases arising under our civil rights laws” and that the award of attorney’s fees is to be governed by the principle established in Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968), that “[a] party seeking to enforce the rights protected by [inter alia, section 1983], if successful, ‘should ordinarily recover an attorney’s fee unless' special circumstances would render such an award unjust.’ ” S.Rep.No.94-1011, 94th Cong., 2d Sess. 4 (1976), reprinted in [1976] U.S.Code Cong. & Ad.News 5912 (emphasis added). Despite the clear wording of the statute and its" }, { "docid": "19815859", "title": "", "text": "court awarded the full amount requested by Busche pursuant to the Civil Rights Attorney’s Fees Awards Act, which provides that in civil rights actions under § 1983 and certain other statutes, “the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs.” 42 U.S.C. § 1988 (1976). This discretion is limited by the Act’s legislative history, which provides that the successful plaintiff “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” S.Rep.No. 94-1011, 94th Cong., 2d Sess. 4, reprinted in [1976] U.S.Code Cong. & Ad. News 5908, 5912 (quoting Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968)). Burkee does not contest the number of hours expended by Busche’s attorneys or the reasonableness of the $50 hourly rate. Rather, he contends that the award was based on an erroneous understanding of the relevant legal standards. Fees should be awarded, Burkee urges, only to those parties who bring actions “in the capacity of private attorneys general” to enforce the civil rights statutes. He seeks, in effect, to limit the application of § 1988 to class actions that seek equitable relief. This narrow construction contradicts the unqualified language of the Act. Section 1988 explicitly extends to all § 1983 actions, without regard to the number of plaintiffs or type of relief sought. See Konczak v. Tyrrell, 603 F.2d 13 (7th Cir. 1979); Comment, Attorney’s Fees in Damage Actions Under the Civil Rights Attorney’s Fees Awards Act of 1976, 47 U.Chi.L.Rev. 332 (1980). A prevailing plaintiff in a § 1983 action “should receive fees almost as a matter of course,” Davis v. Murphy, 587 F.2d 362, 364 (7th Cir. 1978), unless special circumstances render such an award unjust. Burkee has indicated no such circumstances in the present case. Burkee also argues that the award of fees in this case was improper because Busche was not a “prevailing party” within the meaning of § 1988 since he did not succeed in his claims regarding the constitutional sufficiency of the Commission" }, { "docid": "16485217", "title": "", "text": "among other things, “to hold the Fort Worth Independent School District accountable for attorney’s fees resulting from the honest pursuit and defense of their statutory duty would in this Court’s discretion be not only inappropriate but unjust.” In enacting the Civil Rights Attorney’s Fees Awards Act of 1976, Congress sought “to remedy anomalous gaps in our civil rights laws created by the United States Supreme Court’s recent decision in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 [95 S.Ct. 1612, 44 L.Ed.2d 141] (1975).” S.Rep.No.94-1011, 94th Cong. 2d Sess. 5, reprinted in [1976] U.S.Code Cong. & Admin.News, pp. 5908, 5909. In Alyeska the Court of Appeals for the District of Columbia, without statutory authorization, awarded attorney’s fees to plaintiffs on the theory that they were performing the services of a “private attorney general.” The Supreme Court reversed, ruling that Congress alone has authority to specify when attorney’s fees should be awarded in statutory actions. Consequently, after Alyeska a federal court could award attorney’s fees to a prevailing litigant in actions brought under Title II or VII of the Civil Rights Act of 1964, 42 U.S.C.A. §§ 2000a~3(b), 2000e -5(k), both of which specifically provide for attorney’s fees, but could not allow fees in similar actions brought under 42 U.S.C.A. §§ 1981 or 1983. Congress responded to this anomaly by amending 42 U.S.C.A. § 1988 to provide: In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of [title 42] the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs. The legislative history of the Act makes clear that Congress intended that a prevailing plaintiff claiming under § 1988 “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” S.Rep.No.94-1011, 94th Cong. 2d Sess. 5, reprinted in [1976] U.S. Code Cong. & Admin.News, pp. 5908, 5912, quoting Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968). Newman had first enunciated this standard for the allowance of attorney’s fees in" }, { "docid": "14379303", "title": "", "text": "Cir. 1978); Shipp v. Todd, 568 F.2d 133, 134 (9th Cir. 1978). The question presently before us is whether a judicial official is liable for attorney fees under 42 U.S.C. § 1988 when judicial immunity is not a bar to prospective relief. The Civil Rights Attorneys’ Fees Awards Act of 1976, 42 U.S.C. § 1988, provides that in any action under 42 U.S.C. § 1983, the district court, “in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” See Hutto v. Finney, 437 U.S. 678, 694, 98 S.Ct. 2565, 2575, 57 L.Ed.2d 522 (1978). In Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 738-39, 100 S.Ct. 1967, 1978, 64 L.Ed.2d 641 (1980), the Supreme Court held that attorney fees may be recovered against an official under 42 U.S.C. § 1988 when prospective relief is properly awarded against the official. The Court found, on the basis of the legislative history of § 1988, that Congress intended for attorney fees to be awarded under § 1988 to claimants who obtain prospective relief against an official but who otherwise are barred from recovering damages against the official. Id. Indeed, the House Report states: Furthermore, while damages are theoretically available under the statutes covered by (§ 1988), it should be observed that, in some cases, immunity doctrines and special defenses, available only to public officials, preclude or severely limit the damage remedy.17 Consequently, awarding counsel fees to prevailing plaintiffs in such litigation is particularly important and necessary if Federal civil and constitutional rights are to be adequately protected. H.R.Rep.No.1558, 94th Cong., 2nd Sess. 9 (1976). We hold, therefore, that a prevailing party may recover attorney fees against a judicial official under 42 U.S.C. § 1988 when prospective relief is properly awarded against the official. See Morrison v. Ayoob, 627 F.2d 669, 672-73 (3d Cir. 1980), cert. denied, 449 U.S. 1102, 101 S.Ct. 898, 66 L.Ed.2d 828 (1981); Entertainment Concepts, Inc. v. Maciejewski, 631 F.2d 497, 507 (7th Cir. 1980), cert. denied, 450 U.S. 919, 101 S.Ct. 1366, 67 L.Ed.2d 346" }, { "docid": "5485661", "title": "", "text": "trial counsel and the rate. The district court indicated that the award was based on the total record and the guidelines announced in Waters v. Wisconsin Steel Works, 502 F.2d 1329 (7th Cir. 1974). On December 4, 1979, appellants filed a request to reconsider the award of attorney’s fees and a request for a hearing, stating that on December 3, 1979, at the close of business, they had not completed the brief opposing attorney’s fees and were “in process of requesting leave to file the brief one day late... . ” The trial judge considered the motion and supporting memorandum, over appellees’ objection that it was untimely, and subsequently entered an order affirming that after careful review of both the memorandum and record, the award was well within the law as announced in Dawson v. Pastrick, 600 F.2d 70 (1979), the most recent Seventh Circuit authority. The Civil Rights Attorneys Fees Awards Act, 42 U.S.C. § 1988, provides that “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of costs.” That this discretion is somewhat narrow is apparent from the legislative history: A party seeking to enforce the rights protected by the statutes covered by S.2278, if successful, “should ordinarily recover attorney’s fees unless special circumstances would render such an award unjust.” Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968). S.Rep.No.94-1011, 94th Cong., 2d Sess. 4, reprinted in [1976] U.S.Code Cong. & Ad. News, pp. 5908, 5912. Dawson v. Pastrick, 600 F.2d 70, 79. Appellants contend that the award in this instance is unjust in that (1) appellees were not the prevailing party, (2) there are special circumstances which would make the award unjust, and (3) the amount of fees was improperly calculated. The court properly determined that appellees were the prevailing party in this action. While it is true that the initial suit included eight defendants and that the final judgment was entered against only three, it is only the suit against those three which is the basis" } ]

[ { "docid": "18865224", "title": "", "text": "714, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967), and the Second Circuit’s decision, relying on Fleischmann, in Blue Bell, Inc. v. Jaymar-Ruby, Inc., 497 F.2d 433 (2d Cir.1974). In Fleischmann the Supreme Court distinguished between the English Rule of damages and the American Rule. The English Rule is that costs, including attorneys’ fees, are awarded to the prevailing party in an action as a “necessary appendage” to the judgment. 3 W. Blaekstone, Commentaries on the Laws of England 399 (1768). That rule had its origins in the thirteenth century in the Statute of Gloucester, 6 Edw. I., c. 1, which provided that the successful plaintiff could recover the costs of his suit, including fees. It was not until the sixteenth century that a defendant could recover costs and fees, 23 Hen. VIII, c. 15, although in one particular ease a thirteenth-century defendant had been awarded his costs in an action involving wardship in chivalry (one of the feudal incidents of tenure). Statute of Marl-bridge, 52 Hen. Ill, c. 6; see generally 3 W. Blaekstone, Commentaries, supra, at 399-401. The American Rule is that parties must bear their own costs absent a specific statutory provision shifting them. See, e.g., Fogerty v. Fantasy, Inc., — U.S. -, -, 114 S.Ct. 1023, 1033, 127 L.Ed.2d 455 (1994); Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 247-62, 95 S.Ct. 1612, 1616-24, 44 L.Ed.2d 141 (1975); Fleischmann, supra, 386 U.S. at 717-19, 87 S.Ct. at 1406-08. In Fleischmann, the district court had awarded the plaintiff its attorneys' fees under Section 35 because the defendant had willfully infringed plaintiffs trademark. Section 35 did not at that time have a specific provision allowing the awarding fees, but did (as it does now) allow the plaintiff to recover “the costs of the action.” The Supreme Court held that “in the context of statutory causes of action for which the legislature had prescribed intricate remedies,” such as actions for trademark infringement under the Lan-ham Act, where Congress did not specifically allow for the recovery of fees and had omitted fees from its definition of costs, attorneys’ fees were" } ]

[ { "docid": "18865223", "title": "", "text": "as a consequence of that fraud. 15 U.S.C. § 1120. The only damages that Gold Seal seeks is recovery of its attorneys’ fees. A. The issue of whether attorneys’ fees are available as damages under Section 38 has not been satisfactorily resolved in this circuit. We recently suggested, in a footnote, that we doubted that costs could - be recovered under that section. Gilbert/Robinson, Inc. v. Carrie Beverage-Missouri, Inc., 989 F.2d 985, 991 n. 5 (8th Cir.1993) (holding that defendant was not entitled to any damages under Section 38). That doubt arose from an earlier case, decided under the provisions of the Lanham Act in effect before 1975. Wrist-Rocket Mfg. Co. v. Saunders Archery Co., 578 F.2d 727, 734 (8th Cir.1978). In 1975, Congress amended the Lanham Act to include, in Section 35, a clause allowing the award of attorneys’ fees in “exceptional cases.” In Wristr-Rocket, in interpreting Section 38 to allow recovery of damages except for attorneys’ fees, we followed, the Supreme Court’s decision in Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967), and the Second Circuit’s decision, relying on Fleischmann, in Blue Bell, Inc. v. Jaymar-Ruby, Inc., 497 F.2d 433 (2d Cir.1974). In Fleischmann the Supreme Court distinguished between the English Rule of damages and the American Rule. The English Rule is that costs, including attorneys’ fees, are awarded to the prevailing party in an action as a “necessary appendage” to the judgment. 3 W. Blaekstone, Commentaries on the Laws of England 399 (1768). That rule had its origins in the thirteenth century in the Statute of Gloucester, 6 Edw. I., c. 1, which provided that the successful plaintiff could recover the costs of his suit, including fees. It was not until the sixteenth century that a defendant could recover costs and fees, 23 Hen. VIII, c. 15, although in one particular ease a thirteenth-century defendant had been awarded his costs in an action involving wardship in chivalry (one of the feudal incidents of tenure). Statute of Marl-bridge, 52 Hen. Ill, c. 6; see generally 3 W. Blaekstone, Commentaries," }, { "docid": "2127094", "title": "", "text": "a claim under Section 35(a). See International Star, 80 F.3d at 754 (citing Restatement (Third) of Unfair Competition § 37 cmt. e (1995)); United Greeks, Inc. v. Klein, No. 00 Civ. 0002, 2000 WL 554196, at *2 (N.D.N.Y. May 2, 2000). Accordingly, GMA’s motion to dismiss Idea Nuova’s Section 35(a) claim is denied. 2. Section 38 Idea Nuova also purports to bring its claim for attorneys’ fees and damages pursuant to Section 38 of the Lanham Act. Section 38 provides in relevant part: Any person who shall procure registration in the Patent and Trademark Office of a mark by a false or fraudulent declaration or representation, oral or in writing, or by any false means, shall be liable in a civil action by any person injured thereby for any damages sustained in consequence thereof. 15 U.S.C. § 1120. To the extent Idea Nuova is alleging a claim based on GMA’s suspended “Room In A Box” trademark application, the claim must fail; by its terms Section 38, 15 U.S.C. § 1120, does not apply to trademark applications that have not been registered. See Bernard v. Commerce Drug Co., 774 F.Supp. 103, 109 (E.D.N.Y.1991), aff'd, 964 F.2d 1338 (2d Cir.1992). To the extent Idea Nuova’s claim is instead based on GMA’s registered “Room on the Run” trademark, it fares no better. First, attorneys’ fees are ordinarily not recoverable under § 38. See Havana Club Holding, S.A. v. Galleon, S.A., No. 96 Civ. 9655, 1998 WL 150983, at *2 (S.D.N.Y. Mar. 31, 1998) (citing Blue Bell, Inc. v. Jaymar-Ruby, Inc., 497 F.2d 433, 439 (2d Cir.1974)). Although it is possible “fees could be awarded in a case where an absolutely false registration was fraudulently obtained solely for the purpose of instituting completely vexatious litigation,” Idea Nuova has failed to plead that GMA filed a trademark application “solely ... to facilitate meritless litigation.” Havana Club, 1998 WL 150983, at *2 (granting motion to dismiss § 38 claim) (internal quotation marks and citation omitted). Second, a claim for fraudulent registration under § 38, like any fraud claim, must comply with the heightened pleading standards of" }, { "docid": "10353509", "title": "", "text": "almost half of the people who responded found an “association” between the two names, but Exxene made vigorous efforts to discredit the survey in the jury’s eyes and we cannot say that no reasonable jury could have rejected the survey results. We turn now to Exxene’s counterclaim. Section 38 of the Lanham Act is captioned “Civil liability for false or fraudulent registration,” and forbids the procuring of a trademark registration “by a false or fraudulent declaration or representation ... or by any false means .... ” The special verdict form allowed the jury to find a violation of section 38 on the basis of “conduct of Exxon Corporation in attempting to enforce trademark registrations which were obtained by false representations or by any false means or which have not been used, or which have been abandoned.” The addition of the words that we have italicized has no basis in the statute but was not objected to; as we have already discussed, Exxon acquiesced in the instructions. Exxon’s counsel also failed to move for a directed verdict, even though the only evidence of damages was an estimate by Exxene’s president that the defense of Exxon’s lawsuit had cost his company $250,000 in legal fees. The jury awarded that amount in damages. Unless attorney’s fees may be awarded as damages under section 38, Exxene failed to prove any injury from Exxon’s alleged violation; and it is improper to submit to the jury a theory of liability for which no relief is sought. In Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967), the Supreme Court held that attorney’s fees could not be awarded in a suit under section 35 of. the Lanham Act (trademark infringement), because there was no explicit statutory authorization for such an award. There was (and is) none in section 38 either, and this led the Second Circuit to hold in reliance on Fleischmann that attorney’s fees could not be obtained in suits under that section either. Blue Bell, Inc. v. Jaymar-Ruby, Inc., 497 F.2d 433, 439 (2d Cir.1974). Congress amended" }, { "docid": "11691142", "title": "", "text": "(2000). When we review a sufficiency of the evidence claim, “our review is limited to determining whether the record — viewed in the light most favorable to the prevailing party — contains substantial evidence to support the jury’s decision.” Comcoa, Inc. v. NEC Tel., Inc., 931 F.2d 655, 663 (10th Cir.1991). “The jury, moreover, has the exclusive function of appraising credibility, determining the weight to be given to the testimony, drawing inferences from the facts established, resolving conflicts in the evidence, and reaching ultimate conclusions of fact.” Kitchens v. Bryan County Nat’l Bank, 825 F.2d 248, 251 (10th Cir.1987). Section 38 of the Lanham Act creates civil liability for those who fraudulently procure a trademark registration: Any person who shall procure registration in the Patent and Trademark Office of a mark by a false or fraudulent declaration or representation, oral or in writing, or by any false means, shall be liable in a civil action by any person injured thereby for any damages sustained in consequence thereof. 15 U.S.C. § 1120. In order to prove fraudulent procurement, United was required to show: (1) the false representation regarding a material fact; (2) the registrant’s knowledge or belief that the representation is false (scienter); (3) the intention to induce action or refraining from action in reliance on the misrepresentation; (4) reasonable reliance on the misrepresentation; and (5) damages proximately resulting from such reliance. San Juan Prods., Inc. v. San Juan Pools of Kansas, Inc., 849 F.2d 468, 473 (10th Cir.1988). Midland concedes we are concerned solely with the second element for the purposes of this appeal. As part of the trademark registration application, Midland’s president, Robert Shockey, signed an affidavit attesting that to the best of his belief and knowledge, “no other person, firm, or corporation ha[d] the right to use said mark in commerce, either in the identical form or in such near resemblance hereto as may be likely when applied to the goods of such other person to cause confusion or to cause mistake or to deceive.” See 15 U.S.C. § 1051. In determining whether this statement was fraudulent, we" }, { "docid": "10353510", "title": "", "text": "verdict, even though the only evidence of damages was an estimate by Exxene’s president that the defense of Exxon’s lawsuit had cost his company $250,000 in legal fees. The jury awarded that amount in damages. Unless attorney’s fees may be awarded as damages under section 38, Exxene failed to prove any injury from Exxon’s alleged violation; and it is improper to submit to the jury a theory of liability for which no relief is sought. In Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967), the Supreme Court held that attorney’s fees could not be awarded in a suit under section 35 of. the Lanham Act (trademark infringement), because there was no explicit statutory authorization for such an award. There was (and is) none in section 38 either, and this led the Second Circuit to hold in reliance on Fleischmann that attorney’s fees could not be obtained in suits under that section either. Blue Bell, Inc. v. Jaymar-Ruby, Inc., 497 F.2d 433, 439 (2d Cir.1974). Congress amended section 35 the year after Blue Bell was decided to provide that “the court in exceptional cases may award reasonable attorney fees to the prevailing party,” but it did not amend section 38. Exxene argues that by amending section 35 Congress overruled Fleischmann and Blue Bell and that the failure to amend section 38 was an oversight. This is extremely tenuous conjecture but even if true would not help Exxene. Section 35 contemplates that when the case is over the winning party will move the court for an award of attorney’s fees upon a showing of exceptional circumstances. If attorney’s fees are allowable in a section 38 case despite Congress’s silence, presumably the same procedure would be followed. Exxene, however, did not move for an award of attorney’s fees. Instead it asked the jury to award it such fees in the form of damages. Since Exxene did not try to prove any other damages, it is not even clear that it was a “prevailing party” within the meaning of the attorney’s fees provision in section" }, { "docid": "23409234", "title": "", "text": "services. One final point remains. The plaintiff claims that the assignment is ineffective because it was a sham transaction, initiated by Harris for the sole purpose of obtaining superior rights to the mark in the Chicago area. Presumably, Harris sought the assignment because it knew of the plaintiff’s prior rights in the mark. Harris did in fact know of the plaintiff’s pending registration and it would be naive to conclude that that knowledge was completely irrelevant to its decision to seek an assignment from United. It is also true, however, that so long as United retained any rights in the mark, that institution was itself an impediment to the defendant’s usage of the mark. Obtaining the assignment from United is consistent with the defendant’s documented belief that the plaintiff could not successfully assert nationwide rights in the mark, and therefore another institution was free to use the mark in the Chicago area. We do not believe that an assignment motivated at least in part by sound business judgment should be set aside as a sham transaction. We conclude that the assignment from United to Harris was effective. The mark had not been abandoned at the time of the assignment and whatever goodwill was associated with the mark passed to the defendant pursuant to the assignment. VI. ATTORNEYS’ FEES Finally, we address whether the district judge erred in awarding attorneys’ fees to the defendant pursuant to section 38 of the Act, 15 U.S.C. § 1120 (1976). That section provides: Any person who shall procure registration in the Patent and Trademark Office of a mark by a false or fraudulent declaration or representation, oral or in writing, or by any false means, shall be liable in a civil action by any person injured thereby for any damages sustained in consequence thereof. This court has previously clarified that a “mistake” in statements made to the Patent Office is insufficient to support an award of damages pursuant to section 38. Donald F. Duncan, Inc. v. Royal Tops Manufacturing Co., 381 F.2d 879, 884 (7th Cir. 1967), cert. denied, 390 U.S. 905, 88 S.Ct. 819," }, { "docid": "23409235", "title": "", "text": "transaction. We conclude that the assignment from United to Harris was effective. The mark had not been abandoned at the time of the assignment and whatever goodwill was associated with the mark passed to the defendant pursuant to the assignment. VI. ATTORNEYS’ FEES Finally, we address whether the district judge erred in awarding attorneys’ fees to the defendant pursuant to section 38 of the Act, 15 U.S.C. § 1120 (1976). That section provides: Any person who shall procure registration in the Patent and Trademark Office of a mark by a false or fraudulent declaration or representation, oral or in writing, or by any false means, shall be liable in a civil action by any person injured thereby for any damages sustained in consequence thereof. This court has previously clarified that a “mistake” in statements made to the Patent Office is insufficient to support an award of damages pursuant to section 38. Donald F. Duncan, Inc. v. Royal Tops Manufacturing Co., 381 F.2d 879, 884 (7th Cir. 1967), cert. denied, 390 U.S. 905, 88 S.Ct. 819, 19 L.Ed.2d 871 (1968); accord, Loctite Corp. v. National Starch & Chemical Corp., 516 F.Supp. 190 (LBS) (S.D.N.Y. 1981); Acme Valve & Fittings Co. v. Wayne, 386 F.Supp. 1162, 1169 (S.D. Tex. 1974); De Mert & Dougherty, Inc. v. Chesebrough-Pond’s, Inc., 348 F.Supp. 1194, 1199 (N.D. Ill. 1972); Schwinn Bicycle v. Murray Ohio Manufacturing Co., 339 F.Supp. 973, 984 (M.D. Tenn. 1971), aff’d on other grounds, 470 F.2d 975 (6th Cir. 1972). In Duncan, the plaintiff had expressed concern that the term “yo-yo” might be found descriptive prior to his application for registration. This court held that: [N]o fraudulent or false statements were made and that no fraud was involved in connection with the procurement of Duncan’s trademark registrations.... [T]he evidence falls short of showing that Duncan’s claims to the trademarks were knowingly made in bad faith, or that his applications were punctuated with false or fraudulent statements. 381 F.2d at 884. The defendant’s counterclaim in Duncan, based on 15 U.S.C. § 1120 (1976), was held to have been properly dismissed. Having found that Modern" }, { "docid": "22423268", "title": "", "text": "the Union. We affirm on all other issues. II. Availability of Court-Awarded Attorney’s Fees. In Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), the Supreme Court reaffirmed the traditional “American rule” that the prevailing party in federal litigation may not ordinarily recover attorney’s fees in the absence of express statutory authorization. The Court, however, also reaffirmed an exception to this rule “when the losing party has ‘acted in bad faith, vexatiously, wantonly, or for oppressive reasons.’” Id. at 258-59, 95 S.Ct. at 1622, quoting F. D. Rich Co., Inc. v. United States ex rel. Industrial Lumber, Inc., 417 U.S. 116, 129, 94 S.Ct. 2157, 2165, 40 L.Ed.2d 703 (1974). Accordingly, this court has recognized post-Alyeska that an award of attorney’s fees may be proper in an action under section 301 for breach of contract or in a suit for breach of the duty of fair representation, even in the absence of express statutory authorization, if the losing party has acted in bad faith. Cronin v. Sears, Roebuck & Co., 588 F.2d 616 (8th Cir. 1978) (action by employees against employer and union for breach of collective bargaining agreement and duty of fair representation); General Drivers, Helpers and Truck Terminal Employees, Local No. 120 v. Sears, Roebuck & Co., 535 F.2d 1072 (8th Cir. 1976) (action by union to require arbitration of grievance under collective bargaining provision); Richardson v. Communication Workers of America, 530 F.2d 126 (8th Cir.) (action by employee against company, international, and local for wrongful discharge), cert. denied, 429 U.S. 824, 97 S.Ct. 77, 50 L.Ed.2d 86 (1976). See R. Gorman, Basic Text on Labor Law 724 (West 1976). In a Title VII action, however, a different standard governs the allowance of attorney’s fees to a prevailing litigant. Section 706(k) of Title VII of the Civil Rights Act of 1964, as amended, provides: In any action or proceeding under this [title] the court, in its discretion, may ..allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee as part of the costs, and" }, { "docid": "1427078", "title": "", "text": "the conscience of this Court. See Barnes v. Smith, 305 F.2d 226 (10th Cir. 1962). We therefore affirm that award. Attorneys’ Fees We turn now to Reed’s cross-appeal seeking reversal of the trial court’s refusal to award him attorneys’ fees. The American rule consistently applied in this Circuit is that in the absence of contractual or statutory liability therefor, attorneys’ fees and related expenses are not recoverable as an element of damages. Alyeska Pipeline Co. v. Wilderness Soc’y, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975); Wilshire Oil Co. v. Riffe, 409 F.2d 1277 (10th Cir. 1969). The trial judge in Miller v. Aaacon Auto Transport, Inc., found an award against Aaacon appropriate under the equitable powers exception recognized in Alyeska. 447 F.Supp. at 1206-07. The trial court here did not, and we cannot say this is a case in which that court was required to make such an award in the interests of justice. Reed asserts, however, that section 8 of the Interstate Commerce Act applies, to permit recovery of attorneys’ fees here. “In case any common carrier subject to the provisions of this chapter shall do, cause to be done, or permit to be done any act, matter, or thing in this chapter prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this chapter required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence. of any such violation of the provisions of this chapter, together with a reasonable counsel or attorney’s fee, to be fixed by the court in every case of recovery, which attorney’s fee shall be taxed and collected as part of the costs in the case.” 49 U.S.C. § 8 (emphasis added). He points out that the Interstate Commerce Commission, pursuant to 49 U.S.C. § 12(1), has promulgated regulations governing the manner in which damage and loss claims are to be filed and the proper manner for disposing of such claims. 49 C.F.R. § 1005.5 (1979) provides in pertinent" }, { "docid": "23271726", "title": "", "text": "(6th Cir. 1974). . Id. at 1096. . Frankfurter, Reading of Statutes, 47 Col.L. Rev. 527 (1947); Radin, Statutory Interpretation, 43 Harv.L.Rev. 863 (1930). . Section 706(k) therefore constitutes a specific statutory provision for the award of an attorney’s fee, otherwise exempted from costs allowable against the government. 28 U.S.C. § 2412 (Supp.1975). . No argument has been made that the district court action respecting the demand for access to documents is not a proceeding, or that U.S. Steel is not a prevailing party, as those terms are used in Section 706(k). . 385 F.Supp. 346, 349 (W.D.Pa.1974). . See Newman v. Piggie Park, Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968) (granting attorney fees under 42 U.S.C. § 2000a-3(b), in an injunctive suit under Title II of the Civil Rights Act of 1964). The Court, espousing the “private attorney general” theory respecting attorney fees for prevailing plaintiffs, stated that Congress adopted the counsel fee provision “not simply to penalize litigants who deliberately advance arguments they know to be untenable but, more broadly, to encourage individuals injured by racial discrimination to seek judicial relief . . ..” Id. at 402, 88 S.Ct. at 966. The Court held that, under Title II, a victorious plaintiff should “ordinarily recover an attorney’s fee.” Id. The statutory language permitting discretionary attorney fees under Title II and Title VII are substantially identical. Compare 42 U.S.C. § 2000a-3(b), § 2000e-5(k). In the absence of statutory authority, the Supreme Court has been reluctant to impose an attorney’s fee on parties. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). But see, Mills v. Electric Auto-Lite Co., 396 U.S. 375, 391-96, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970). . Some statutes provide for a mandatory counsel fee award (see, e. g., 15 U.S.C. § 15 (antitrust)), or otherwise provide legislative direction for the courts (see, e. g., 35 U.S.C. § 285 (patents; award in exceptional cases permitted)). . Evans v. Sheraton Park Hotel, 164 U.S.App. D.C. 86, 503 F.2d 177 (1974); Johnson v. Georgia Highway Express," }, { "docid": "5286238", "title": "", "text": "contrary to controlling law in this circuit. See Landstrom v. Thorpe, 189 F.2d 46, 52-53 (8th Cir.), cert. denied, 342 U.S. 819, 72 S.Ct. 37, 96 L.Ed. 620 (1951). Remedies for fraud on the PTO are a matter of federal law, and the Lanham Act's \"meticulously detailed” remedial provisions preclude award of this extrastatutory remedy. Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 719, 87 S.Ct. 1404, 1407, 18 L.Ed.2d 475 (1967). . This might not always be the case. If two competitors seek to register confusingly similar marks consisting of a third person's name, and one obtains a prior registration by fraudulently concealing its failure to obtain the third party's consent, the second would be directly injured by the fraud. . We doubt whether infringement defense costs may be recovered under § 1120. See Wrist-Rocket Mfg. Co. v. Saunders Archery Co., 578 F.2d 727, 734 (8th Cir.1978); Blue Bell, Inc. v. Jaymar-Ruby, Inc., 497 F.2d 433, 439 (2d Cir.1974). The statute allows attorneys fees to be awarded to the \"prevailing party” in an infringement suit in exceptional cases. 15 U.S.C. § 1117. A § 1120 damage claim may not supplant the court's carefully circumscribed discretion to award fees under § 1117. Cf. Louis Ender, Inc. v. General Foods Corp., 467 F.2d 327, 330-31 (2d Cir.1972), cert. denied, 410 U.S. 930, 93 S.Ct. 1371, 35 L.Ed.2d 592 (1973) (cost of defending trademark owner's unfair competition claim in state court not recoverable under § 1120). . As the Jerabek and du Pont cases illustrate, our ruling leaves open the question whether Carrie (or another infringer) could use Gilbert’s 1976 fraud as a defense to Lanham Act infringement claims. That question is not before us because Gilbert did not appeal the district court’s order dismissing its Lanham Act claim based upon the jury’s fraud determination. Because the district court did not sufficiently analyze whether this ruling was consistent with the Lanham Act’s broad public purposes, it should not be afforded res judicata or collateral estoppel effect in any future litigation involving Gilbert’s marks." }, { "docid": "4641002", "title": "", "text": "(Dkt. 256-58.) These hours represent efforts undertaken on behalf of Wesley Medical Center, Health Care Plus, New Century, and Dr. Reazin, relating to those parties’ complaint against BCBSK. Legal services provided those parties, and HCA, on defendant’s counterclaim are specifically excluded from this request for fees. Plaintiffs also seek to recover expert witness’ fees and other reimbursable items in the amount of $209,767.77; and various costs amounting to $37,077.22, under 28 U.S.C. § 1920. Section 4 of the Clayton Act, 15 U.S.C. § 15, in addition to trebling the damages awarded in this case, permits plaintiffs to recover “the cost of suit, including a reasonable attorney’s fee.” The purpose of the fee provision is to insulate treble damage recovery from expenditure for legal fees, consonant with §' 4’s general purpose of encouraging private individuals to undertake enforcement of the antitrust laws. Twin City Sportservice, Inc. v. Charles O. Finley & Co., 676 F.2d 1291, 1312 (9th Cir.), cert. denied 459 U.S. 1009, 103 S.Ct. 364, 74 L.Ed.2d 400 (1982). The award of attorney’s fees to successful plaintiffs under § 4 is mandatory. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 261, 95 S.Ct. 1612, 1623, 44 L.Ed.2d 141 (1975); Illinois v. Sangamo Construc tion Co., 657 F.2d 855, 858 (7th Cir.1981); Black Gold, Ltd. v. Rockwool Industries, Inc., 529 F.Supp. 272, 274 (D.Colo.1981). The benchmark for nearly every award of attorney’s fees under authorizing federal statutes is that the fee must be “reasonable”. Pennsylvania v. Delaware Valley Citizens’ Council, 478 U.S.-,-, 106 S.Ct. 3088, 3096, 92 L.Ed.2d 439, 454 (1986). The United States Supreme Court and the Tenth Circuit Court of Appeals have defined the “reasonableness” of fees primarily in civil rights actions, but those standards announced apply equally to all cases involving attorney’s fees, including antitrust cases such as this. Hensley v. Eckerhart, 461 U.S. 424, 433 n. 7, 103 S.Ct. 1933, 1939 n. 7, 76 L.Ed.2d 40 (1983); World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1481 & n. 8 (10th Cir.1985). Thus, I will apply to plaintiffs’ request the controlling principles found" }, { "docid": "22289175", "title": "", "text": "reasonableness of this award was not challenged in the prior appeal, Carpa I, supra, 536 F.2d at 56. On remand the district court modified the attorneys’ fee award to include interest at six percent per year, computed from September 5, 1974, the date of the original judgment. We hold that the plaintiffs’ attorneys are not entitled to interest on their fee award. The statutory award of attorneys’ fees by the district court was made pursuant to 15 U.S.C. § 15, which provides in part that “Any person who shall be injured in his business or property by reason of anything forbidden in the anti-trust laws . . shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.” (Emphasis supplied). The language of the statute clearly indicates that attorneys’ fees are to be treated as part of the costs in an antitrust suit. The question thus becomes whether the district court may award interest on attorneys’ fees when the fees are treated as costs. We note at the outset that this question must be determined by federal law. Although the rate of interest is to be determined by state law, 28 U.S.C. § 1961, where as here the claim for relief is federally created, the allowance of interest is to be decided by federal law. See Perkins v. Standard Oil Co., 487 F.2d 672 (9th Cir. 1973) ; Chris-Craft Industries, Inc. v. Piper Aircraft Corp., 384 F.Supp. 507 (S.D.N.Y. 1974) , reversed in part on other grounds, 516 F.2d 172 (2nd Cir. 1975). Under federal law, the award of attorneys’ fees has been the exception not the rule, and a litigant generally assumes the burden of paying for his own litigation costs in the absence of a rule or statute to the contrary. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). “Thus, counsel fees ordinarily are not taxable as costs.” 10 Wright and Miller, Federal Practice and Procedure § 2675 at 179-80. The antitrust laws do provide that a successful plaintiff may recover" }, { "docid": "5286237", "title": "", "text": "survive our conclusion that the jury verdict must be reversed as a matter of law. In addition, the jury verdict affords Carrie no absolute defense to Gilbert’s state law infringement and unfair competition claims. See Republic Molding Corp. v. B.W. Photo Utils., 319 F.2d 347, 350 (9th Cir.1963). IV. For the foregoing reasons, the September 29, 1987, judgment of the district court is reversed and the case is remanded with instructions to dismiss Carrie’s counterclaim with prejudice. The February 28, 1991, judgment of the district court is affirmed. . The marks at issue in this case are service marks, rather than trademarks, because they identify restaurant services as opposed to tangible goods. Trademark law treats trademarks and service marks the same. See 15 U.S.C. § 1053. This opinion will use the more common terms, mark or trademark. . The TMEP is the Trademark Manual of Examining Procedure. Section 1204, which is discussed at page 998, infra, is § 1206 in the most recent 1986 edition of the TMEP. . The award of punitive damages is contrary to controlling law in this circuit. See Landstrom v. Thorpe, 189 F.2d 46, 52-53 (8th Cir.), cert. denied, 342 U.S. 819, 72 S.Ct. 37, 96 L.Ed. 620 (1951). Remedies for fraud on the PTO are a matter of federal law, and the Lanham Act's \"meticulously detailed” remedial provisions preclude award of this extrastatutory remedy. Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 719, 87 S.Ct. 1404, 1407, 18 L.Ed.2d 475 (1967). . This might not always be the case. If two competitors seek to register confusingly similar marks consisting of a third person's name, and one obtains a prior registration by fraudulently concealing its failure to obtain the third party's consent, the second would be directly injured by the fraud. . We doubt whether infringement defense costs may be recovered under § 1120. See Wrist-Rocket Mfg. Co. v. Saunders Archery Co., 578 F.2d 727, 734 (8th Cir.1978); Blue Bell, Inc. v. Jaymar-Ruby, Inc., 497 F.2d 433, 439 (2d Cir.1974). The statute allows attorneys fees to be awarded to the \"prevailing party” in" }, { "docid": "18865222", "title": "", "text": "free-market economic system. If Aromatique lost sales because of competition from Gold Seal, that loss is dam-num absque injuria. The marks at issue here are neither registrable nor protectable. The federally registered marks should be canceled pursuant to Section 37 of the Lanham Act, which gives courts the power to order the cancellation of registered marks. 15 U.S.C. § 1119. Aro-matique has no property rights in invalid marks. Because the marks are not distinctive and are functional, Aromatique may not exclude others from using those marks. III. Because the asserted trade dress is invalid, Gold Seal’s claims for attorneys’ fees must be addressed. Gold Seal asks us to award it its attorneys’ fees under Sections 35 (now Section 35(a)) and 38 of the Lanham Act. 15 U.S.C. §§ 1117 (current version § 1117(a)) & 1120. Section 35 allows a court to award attorneys’ fees to the prevailing party “in exceptional cases.” Section 38 of the Lan-ham Act makes a person who procured the registration of a trademark by fraudulent means hable for any damages sustained as a consequence of that fraud. 15 U.S.C. § 1120. The only damages that Gold Seal seeks is recovery of its attorneys’ fees. A. The issue of whether attorneys’ fees are available as damages under Section 38 has not been satisfactorily resolved in this circuit. We recently suggested, in a footnote, that we doubted that costs could - be recovered under that section. Gilbert/Robinson, Inc. v. Carrie Beverage-Missouri, Inc., 989 F.2d 985, 991 n. 5 (8th Cir.1993) (holding that defendant was not entitled to any damages under Section 38). That doubt arose from an earlier case, decided under the provisions of the Lanham Act in effect before 1975. Wrist-Rocket Mfg. Co. v. Saunders Archery Co., 578 F.2d 727, 734 (8th Cir.1978). In 1975, Congress amended the Lanham Act to include, in Section 35, a clause allowing the award of attorneys’ fees in “exceptional cases.” In Wristr-Rocket, in interpreting Section 38 to allow recovery of damages except for attorneys’ fees, we followed, the Supreme Court’s decision in Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S." }, { "docid": "14578591", "title": "", "text": "federal courts is that attorneys’ fees are not ordinarily recoverable in the absence of a statute or enforceable contract providing therefor. F. D. Rich Co. v. Industrial Lumber Co., 417 U.S. 116, 126, 94 S.Ct. 2157, 40 L.Ed.2d 703 (1974); Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967). In the present case jurisdiction of the district court was claimed under 28 U.S.C. §§ 1331, 1343, as well as 42 U.S.C. §§ 1981, 1983 and 2000d. Courts have previously held that despite the fact that neither section 1981 nor 1983 contained specific provisions authorizing the award of attorney fees they were nevertheless allowable under the “private attorney general” rationale. Fowler v. Schwarzwalder, 498 F.2d 143 (8th Cir. 1974); Cooper v. Allen, Jr., 467 F.2d 836 (5th Cir. 1972) (Section 1981); Sims v. Amos, 340 F.Supp. 691 (M.D.Ala.1972) (Section 1983). See also F. D. Rich Co. v. Industrial Lumber Co., 417 U.S. 116, 130, 94 S.Ct. 2157, 40 L.Ed.2d 703 (1974). This court ruled in Doe v. Poelker, 515 F.2d 541, 547 (8th Cir. 1975), that the Alyeska Pipeline opinion has now conclusively established that the “private attorney general” exception to the “American rule” exists only where provided by a specific congressional act. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). Since no statutory authority provides therefor, appellant’s request for the award of attorneys’ fees must be denied. The judgment of the trial court is affirmed. . The Honorable Richard E. Robinson, Senior District Judge, United States District Court for the District of Nebraska, presiding. . 42 U.S.C. § 2000d (1974) provides in pertinent part that: No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. Redress was also sought under 42 U.S.C. §§ 1981, 1983 and jurisdiction of the district court was invoked under 28 U.S.C. §§ 1331, 1343. . Although the" }, { "docid": "18865228", "title": "", "text": "S.Ct. 1028 n. 12. Second, Section 505, like Section 35 of the Lanham Act (which now explicitly mentions fees), permits rather than mandates an award of fees. Section 38, on the other hand, commands that a person who procured registration of a mark by false or fraudulent means “shall be liable for any damages sustained in consequence thereof.” 15 U.S.C. § 1120. If an award of fees were required by Section 38, that requirement would deprive courts of the discretion to award fees under Section 35, which discretion is limited to exceptional cases. 15 U.S.C. § 1117(a). The conclusion that fees are not included within damages awarded under Section 38 is, moreover, consonant with the more general tenor of the law of trademark: As discussed above in Part U.A., a plaintiff may well have common-law and state trademark rights in a mark that is fraudulently registered, because a mark need not be federally registered to form the basis of a cause of action under state law or the Lanham Act. Aromatique might, indeed, have had such rights in the marks at issue here if the marks were distinctive, nonfunctional, and otherwise enforceable. Thus, if we held that Section 38 required an award of fees, we might then require the anomalous result that a plaintiff with valid state and federal common-law trademarks could owe fees to a defendant who infringed valid trademarks. The better rule would allow the court, considering the equities of the particular case, to award attorneys’ fees in exceptional eases. This is what Section 35 does. Courts have defined the characteristics of exceptional cases with adjectives suggesting egregious conduct by a party. We have held that an exceptional case is one in which the plaintiff’s action was groundless, unreasonable, vexatious, or pursued in bad faith. Hartman v. Hallmark Cards, Inc., 833 F.2d 117, 123 (8th Cir.1987). The Seventh Circuit recently described exceptional behavior in this context to be “malicious, fraudulent, deliberate, or willful.” Badger Meter, Inc. v. Grinnell, Corp., 13 F.3d 1145, 1159 (7th Cir.1994). Succinctly put, an exceptional case within the meaning of Section 35 is one" }, { "docid": "2051696", "title": "", "text": "award of Supreme Court fees against them was proper, the amount of fees and costs imposed was both unreasonable and excessive. We address these arguments in turn. A.' The Intervenors’ Liability for Section 1988 Fees Resulting From Litigation in the District Court and the Court of Appeals Fee shifting statutes, while far from unique, represent explicit, congressionally-fashioned exceptions to the general rule— commonly known as the “American Rule” —that each party to a legal dispute is responsible for payment of its own attorneys’ fees incurred prior to or during litigation, regardless of the outcome of the suit in the courts. See e.g., Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967). In Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), the Supreme Court held that with three very narrow exceptions, none of which is applicable here, federal courts lack the inherent power or authority to award attorneys’ fees to a prevailing party unless an act of Congress expressly so provides. Id. at 269, 95 S.Ct. at 1627. Section 1988 of Title 42 of the United States Code, the statute with which we are presently concerned, is just such an exception to the American Rule and, in fact, was enacted in 1976 as a direct consequence of the Alyeska decision. See H.R. Rep. No. 1558, 95th Cong., 2d Sess. at 2; see also S.Rep. No. 1011, 94th Cong., 2d Sess. at 1, reprinted in 1976 U.S.Code Cong. & Admin.News, p. 5908. Despite requiring congressional authorization for judicial fee-shifting, the Court in Alyeska reaffirmed its earlier holding in Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct 964, 19 L.Ed.2d 1263 (1968), that where Congress has so provided, an award of attorneys’ fees should ordinarily be made to the successful plaintiff absent exceptional circumstances. Id. at 402, 88 S.Ct. at 966; Alyeska, 421 U.S. at 262, 95 5.Ct. at 1624. In seeking to determine whether Congress intended to authorize the award of fees to the plaintiffs and against the inter-venors in the instant" }, { "docid": "2127093", "title": "", "text": "plaintiff shall be entitled, ... subject to the principles of equity, to recover (1) defendant’s profits, (2) any damages sustained by the plaintiff, and (3) the costs of the action....” 15 U.S.C. § 1117(a). In addition, the court may award reasonable attorneys’ fees to the prevailing party in “exceptional cases.” See id.; International Star, 80 F.3d at 752. GMA contends that Idea Nuova’s Section 35(a) claim must be dismissed because (1) Section 35(a) is inapplicable to unregistered marks, and (2) Idea Nuova does not state a claim under § 1125(a). By its terms, Section 35(a) applies to violations of § 1125(a) — the section of the Lanham Act that provides protection for unregistered marks — accordingly, GMA’s first argument is rejected. GMA’s second argument is rejected as well, as I have previously held that Idea Nuova’s claim for violations of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), survives the motion to dismiss. Moreover, Idea Nuova has alleged that GMA intentionally created confusion to deceive prospective purchasers. This allegation, if true, could support a claim under Section 35(a). See International Star, 80 F.3d at 754 (citing Restatement (Third) of Unfair Competition § 37 cmt. e (1995)); United Greeks, Inc. v. Klein, No. 00 Civ. 0002, 2000 WL 554196, at *2 (N.D.N.Y. May 2, 2000). Accordingly, GMA’s motion to dismiss Idea Nuova’s Section 35(a) claim is denied. 2. Section 38 Idea Nuova also purports to bring its claim for attorneys’ fees and damages pursuant to Section 38 of the Lanham Act. Section 38 provides in relevant part: Any person who shall procure registration in the Patent and Trademark Office of a mark by a false or fraudulent declaration or representation, oral or in writing, or by any false means, shall be liable in a civil action by any person injured thereby for any damages sustained in consequence thereof. 15 U.S.C. § 1120. To the extent Idea Nuova is alleging a claim based on GMA’s suspended “Room In A Box” trademark application, the claim must fail; by its terms Section 38, 15 U.S.C. § 1120, does not apply to trademark" }, { "docid": "23056820", "title": "", "text": "doing what they did.” After the 1980 appeal, the District Court then held that the same findings of malice and bad faith supported an award of attorney fees for the appeal. The District Court thus did not reach the three other grounds proposed by Shimman. This Court must therefore decide whether an award of appellate attorney fees is allowable where the defendants’ acts giving rise to the underlying LMRDA cause of action were malicious and in bad faith. It has long been the general rule in the United States that a prevailing party may not ordinarily recover attorneys fees in the absence of a statute or enforceable contract providing for a fee award. This “American Rule” regarding attorney fees was adopted by the Supreme Court in Arcambel v. Wiseman, 3 U.S. (3 Dall.) 306, 1 L.Ed. 613 (1796). The American Rule applies to a claim for compensatory damages expressly created by a federal statute. F.D. Rich Co. v. United States ex rel. Industrial Lumber Co., 417 U.S. 116, 94 S.Ct. 2157, 40 L.Ed.2d 703 (1974). The American Rule’s failure to fully compensate an injured party is justified by the rationale that “since litigation is at best uncertain one should not be penalized for merely defending or prosecuting a lawsuit, and that the poor might be unjustly discouraged from instituting actions to vindicate their rights if the penalty for losing included the fees of their opponents’ counsel.” Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718, 87 S.Ct. 1404, 1407, 18 L.Ed.2d 475 (1967). The general American Rule has been reaffirmed numerous times by the Supreme Court. See, e.g., Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Summit Valley Industries v. Local 112, United Brotherhood of Carpenters, 456 U.S. 717, 102 S.Ct. 2112, 72 L.Ed.2d 511 (1982); Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). The “bad faith” exception to the American Rule allows attorney fees in certain exceptional cases where the opposing party has acted in bad faith. The earliest Supreme Court case cited" } ]

[ { "docid": "10420264", "title": "", "text": "is recog nized in Colorado, and in Colorado neither spouse has any interest in the property of the other prior to the death of the one spouse. Petitioner also argues that “in construing the statute we must bear in mind that statutes of this nature must be construed, if possible, in favor of the taxpayer.” Here petitioner is in error. He is claiming a deduction. To obtain a deduction a taxpayer must show that he comes clearly within the terms of the statute allowing it. Empire Trust Co. v. Commissioner, 94 Fed. (2d) 307, affirming 85 B. T. A. 866. Congress has by successive amendments progressively narrowed the scope of the exception to the rule of inclusion of property in the gross estate from “fair” consideration to “adequate and full” in the 1926 Act and then by section 804 of the 1932 Act, which excludes from the category of consideration “in money or money’s worth” any relinquishment of dower or other marital rights in decedent’s property or estate. By the terms of the separation agreement the parties recognized mutual rights and obligations and set about “settling all present and future property rights between himself and his said wife.” In the face of this positive recognition by and expressed purpose of the parties, we are unable to attach any weight in this tax controversy to the fact that the law of Colorado does not provide for dower or curtesy. Whatever may be the rule as to dower or curtesy, certain it is that in the normal incidence of human relations, questions of property rights would arise out of the marital status in Colorado as elsewhere. Such rights are real and vital to the parties. They are broader than the rights of dower and curtesy and need not be dependent on statute. They were recognized by the court in making the allowance. Nevertheless they are “marital rights” in the property of the parties. Such being the situation, we are of the opinion that, so far as concerns the sum of $28,000 allowed to the wife in her individual capacity, this case is" } ]

[ { "docid": "12338855", "title": "", "text": "have been included therein for the reason that decedent’s said wife had acquired her joint tenancy interest in such property for full and adequate consideration.” On October 14, 1940 taxpayer filed an affidavit of one Albert Launer “in support of the claim and contention of Jane S. Pierotti that one-half of the properties reported by her * * * be not considered or treated as subject to return herein for federal estate tax.” This .affidavit stated that Launer had been employed in November 1928 as attorney for taxpayer and decedent to make necessary arrangements for all of decedent’s property to be so vested that title thereto would be “new style” or “post-1927” California Community property within the provisions of § 161a of the Civil Code of California, enacted in July 1927. The affidavit further stated that decedent had requested that his property be so vested between himself and his wife as to cause her the least inconvenience and expense on his death. Mr. James S. Sheehy, an internal revenue agent, called at the office of taxpayer’s present attorney and requested- further information relative to the claim filed by taxpayer. On November 20, 1940 taxpayer’s counsel, in response to said request, by letter informed the local internal revenue agent that the land involved here had been transferred by means of a strawman conveyance to decedent and taxpayer in joint tenancy “after the oral agreement was made between Mr. and Mrs. Pierotti that all of their property would be new style community under the laws of the State of California, as provided by § 161a of the Civil Code, as amended by the Legislature in 1927.” On February 1, 1941 the Government rejected the claim for refund. On December 16, 1942 taxpayer instituted this suit for refund, basing her claim in Paragraph V of the complaint upon the ground that “the Commissioner included in the decedent’s gross estate the entire value of all real and personal property standing in the name of decedent and his wife as joint tenants, whereas only one-half of such value should have been included therein, for the" }, { "docid": "15105207", "title": "", "text": "“the administration of estates” and therefore, under the language used, it would seem that such statutes would not be applicable. We so held in Bank of America Nat. T. & Sav. Ass’n v. Com’r of Int. Rev., 9 Cir., 90 F.2d 981, 983, saying that we believed local law “to be immaterial”. Thereafter, that statement was said to be “inaccurate” and community property law was applied under § 302, in Lang v. Commissioner, 304 U.S. 264, 58 S.Ct. 880, 82 L.Ed. 1331, May 16, 1938, the opinion making no explanation of, or reference to, Porter v. Commissioner, supra. In view of Lang v. Commissioner, supra, the present rule seems to be that community property law is applicable in determining the amount of the gross estate under § 302, and we consider the instant case on that assumption. Second. Appellant contends that the agreement did not operate ás a “transfer” because it “merely attempted to define a. tenancy without creating one and did not establish an interest in and to property by any recognized conveyance”. In view of the granting words, we think the agreement was sufficient in form to operate as a conveyance. Appellant further contends that there was no transfer'because decedent “gave up none of his statutory rights, powers or privileges with regard to community property acquired in California prior to 1927, and she by the same token gained no additional rights, powers or privileges in and to such property”. We believe this contention cannot be sustained. California Civil Code, § 158 provides that “Either husband or wife may enter into any engagement or transaction with the other * * * respecting property, which either might if unmarried * * * ”. Section 159 provides: “A husband and wife cannot, by any contract with each other, alter their legal relations, except as to property is apparent that husband and wife may make a valid contract with each other, and may alter their legal relations with respect to property. Here decedent granted a present and equal interest in the property to which his wife then became entitled by virtue of" }, { "docid": "12338863", "title": "", "text": "support in the evidence in this case. The views we have expressed as to the sufficiency of the claim make it unnecessary to consider the question of waiver. In support of its second point the Government contends that because taxpayer and her husband held legal title to the property as joint tenants it could no’t be held as community property and that evidence could not be received to vary the terms of the deed. It is conceded that state law governs in determining the gross estate of a decedent for federal estate tax purposes, and in determining the nature of the tenancy by which property is held by married persons in California. Under California law it is clear that parol evidence may be admitted to establish that real property is intended to be community property though title thereto be taken by the. husband and wife as joint tenants. The Tomaier case also restated the settled California rule that property may be converted into community property at any time by oral agreement between the spouses. Here the evidence shows that taxpayer and her husband, after an agreement between themselves to hold their property as community property, requested their attorney to take the necessary steps to transform all their property into “new style” California community property following the addition of § 161a to the California Civil Code. And, although on advice of their attorney, they had a deed made to them as joint tenants, this court should in accordance with settled law “prevent the use of common law forms of conveyance to alter the community character of real property contrary to the intention of the parties. Here the intent of the spouses is evident and the finding of the lower court that taxpayer and decedent considered and treated all their property, including .that held in joint tenancy, as community property is amply supported by the evidence. Finally the Government urges that taxpayer may not now assert that the property held in joint tenancy was in reality intended to be community property, for the reason that following the death of her husband, she" }, { "docid": "6430584", "title": "", "text": "undertook to pay to the husband the agreed price of the whole number of shares. The extent of the wife’s interest is limited to so much of the sale price as was applicable to her individual shares, and to this extent it is to be supposed that her husband was accountable to her. There is nothing in the instruments suggestive of an intent to convert the community estate in the stock into a tenancy in common in the proceeds. Doubtless the husband and wife joined in the agreement as a matter of convenience, since each held shares and all were being sold. Perhaps, as the Commissioner suggests, there may have been the further purpose to join the two in a single instrument to avoid possible controversy. See Riley v. Gordon, 137 Cal.App. 311, 30 P.2d 617. For authority petitioners rely on Oakland Bank, Executor, v. Commissioner, 23 B.T.A. 256. That case deals, not with the sale of property, but with its acquisition through the medium of a deed in which the husband and wife were named as grantees. The situations are clearly distinguishable. Moreover, in the proceedings for the probate of Mr. Gump’s will the California court determined that the whole of the estate was community property. 2. It was stipulated that at December 31, 1928 (the date as of which the contract of sale became effective) the earned surplus of the Gump Company at tributable to the 2,664 shares held by Alfred S. Gump had increased by the amount of $193,028.44 over the earned surplus attributable to such shares at July 29, 1927. In other words, there was an increase in the book value of the Alfred S. Gump shares by that amount. Petitioners contend that a definite part of this increment must be excluded from the gross estate of the husband. The reasoning is predicated on the amendment of July 29, 1927, to the community property law of California, after which date the wife’s interest ceased to be a mere expectancy and became a “present, existing and equal” interest. Section 161a Civil Code of California. Concretely, on the" }, { "docid": "7217017", "title": "", "text": "OPINION RAWLINSON, Circuit Judge. This case requires us to determine whether the requirements of California’s transmutation statute, Cal. Fam.Code § 852(a), must be met when realty is transferred from a third party to spouses as joint tenants. We affirm the decision of the Bankruptcy Appellate Panel (“BAP”), that the transmutation statute does not apply in such a circumstance, and that the property in issue is therefore held in joint tenancy rather than as community property. 7. BACKGROUND During their marriage, Eugene and Ann Marie Summers, along with their daughter Aurora Summers, purchased a parcel of real estate with a $10,000 down payment. Eugene and Ann Marie used their savings as well as money from a personal injury award for the down payment. The deed stated that the Summerses were acquiring the property as joint tenants. The deed specifically conveyed the property: To Eugene SummeRS And Ann Marie Summers, HusbaND And Wife And Aurora Summers, An Unmauried Woman, All As Joint Tenants. Eugene Summers AND ANN Marie Summers, Husband And Wife, Hereby AoCept The Interest Herein Conveyed To Them As Joint Tenants With Aurora Summers, An Unmarried Woman. Eugene, Ann Marie, and Aurora eventually filed separate bankruptcy petitions. Ann Marie’s bankruptcy filing preceded Eugene’s. Richard Hanf, the trustee in Ann Marie’s bankruptcy case, contended that the subject property was a community asset and, therefore, became property of Ann Marie’s bankruptcy estate. After a trial, the bankruptcy court ruled that the realty was held in joint tenancy. The BAP affirmed the bankruptcy court’s decision. Hanf v. Summers (In re Summers), 278 B.R. 808 (9th Cir. BAP 2002). II. STANDARD OF REVIEW We “examine the bankruptcy court’s conclusions of law de novo and its factual findings for clear error.” Einstein/Noah Bagel Corp. v. Smith (In re BCE West, L.P.), 819 F.3d 1166, 1170 (9th Cir.2003) (citation omitted). “Decisions of the BAP are reviewed de novo.” Id. (citation omitted). III. DISCUSSION A. Joint Tenancy Nature of the Property “It is well established that state law determines the nature and extent of a debtor’s interest in property.” Abele v. Modem Fin. Plans Svcs., Inc., (In" }, { "docid": "12338856", "title": "", "text": "taxpayer’s present attorney and requested- further information relative to the claim filed by taxpayer. On November 20, 1940 taxpayer’s counsel, in response to said request, by letter informed the local internal revenue agent that the land involved here had been transferred by means of a strawman conveyance to decedent and taxpayer in joint tenancy “after the oral agreement was made between Mr. and Mrs. Pierotti that all of their property would be new style community under the laws of the State of California, as provided by § 161a of the Civil Code, as amended by the Legislature in 1927.” On February 1, 1941 the Government rejected the claim for refund. On December 16, 1942 taxpayer instituted this suit for refund, basing her claim in Paragraph V of the complaint upon the ground that “the Commissioner included in the decedent’s gross estate the entire value of all real and personal property standing in the name of decedent and his wife as joint tenants, whereas only one-half of such value should have been included therein, for the reason that said property was community property in which plaintiff had a present, equal, and existing interest by virtue of the provisions of Sec. 161a of the Civil Code of California.” The Government, by its amended answer, admitted the allegations of Paragraph V of the complaint. The amended answer contained certain allegations pertaining to an ■affirmative defense which the Government, in its brief, states is not material here. In the Government’s pre-trial memorandum in the District Court taxpayer’s theories of recovery were discussed as follows: “Plaintiff apparently has two theories upon which she will base her contention * * *. First, she will, we assume, endeavor ‘to show’ that, at some time prior to the acquisition or transformation of the property into joint tenancy, the decedent orally ‘declared’ the property to be California community property of the type attributable to the toil or talents of one of the spouses exerted after July 29, 1927.” The trial court found that decedent and taxpayer orally agreed to transform their property into “new style” California community property .and" }, { "docid": "12338853", "title": "", "text": "presented to the Commissioner the issue decided by the District Court, namely, that certain real property held by the decedent, Attilio Pierotti, and his wife, Jane S. Pierotti, as joint tenants with right of survivorship, ■was in fact ‘post-1927’ community property and that hence only one-half thereof- — the decedent’s half — was includible in his gross estate tax purposes and, if not, whether the Commissioner waived any defects in the claim. “2. Alternatively, whether a decree of the Superior Court of California, in and for Orange County, wherein and whereby it was adjudged and decreed that at the date of his death the property in question was owned jointly by him and his wife with right of survivorship, and that such tenancy was terminated by his death and title in fee simple thereto vested in her, establishes for the purposes in hand that such was the tenure of the parties in the property at his death under California law. “3. Alternatively, whether there is evidence to sustain the District Court’s finding that at the time of the decedent’s death no interest was held by him in the property in question as a joint tenant, or, if there is, then whether the finding nevertheless is clearly erroneous.” On November 29, 1938, appellee, as executrix of her husband’s estate filed an estate tax return in Orange County, California, in which she included one-half the value of two tracts of real property. The return stated that she and her husband owned the real property as joint tenants. The return also stated that “all property of decedent is claimed to be the community property of decedent and Jane S. Pierotti pursuant to agreement executed on or about the 20th day of November, 1928.” On June 27, 1940 taxpayer filed a claim for refund of this sum on the ground that “such tax was based upon the inclusion in the decedent’s gross estate of the entire value of all real and personal property standing in the name of decedent and his said wife as joint tenants, whereas only one half of such value should" }, { "docid": "12313330", "title": "", "text": "for a debt incurred by either spouse before or during marriage, regardless of which spouse has the management and control of the property and regardless of whether one or both spouses are parties to the debt or to a judgment for the debt”); Babb v. Schmidt, 496 F.2d 957, 959 (9th Cir.1974) (government can reach non-debtor spouse’s interest in community property to satisfy a tax lien against the other spouse, even if the tax liability accrued prior to the marriage); see also In re McIntyre, 222 F.3d 655, 658 (9th Cir.2000) (“[B]y granting creditors recourse against the whole community estate on debts of only one spouse, California law ‘implicitly’ establishes that spouse’s ‘interest’ in the whole of the community property, at least to a degree sufficient for the IRS to impose tax liens under the Internal Revenue Code”). “This presumption, however, is overcome when a declaration in a deed or other title instrument indicates spouses take title to property as joint tenants.” In re Pavich, 191 B.R. 838 (Bankr.E.D.Cal. 1996) (citing In re Rhoads, 130 B.R. 565, 567 (Bankr.C.D.Cal.1991)). “When spouses take title to property as joint tenants, each holds his or her interest as separate property. Because the joint tenancy interest is separate, a non-debtor spouse is entitled to one-half of the proceeds from the sale of the joint tenancy property.” Id. (internal citations omitted). See Estate of Mitchell, 76 Cal.App.4th 1378, 1385, 91 Cal.Rptr.2d 192 (1999) (“A husband and wife may co-own property as joint tenants, tenants in common, or community property. Property cannot be held both as community property and in either a joint ten ancy or a tenancy in common at' the same time. Accordingly, each spouse’s interest in a joint tenancy or a tenancy in common is his or her own separate property”). The Ninth Circuit specifically recognized this rule in In re Summers, 332 F.3d 1240 (9th Cir.2003). There, it noted the presumption created by Family Code § 760 that all property acquired by a married person during the marriage is community property, but observed that “[t]he California Court of Appeal ha[d] concluded that" }, { "docid": "1736111", "title": "", "text": "can obtain the debtor spouse’s right of survivorship and the debtor spouse’s interest in the life estate for the joint lives of the husband and wife. However, in deference to the family unit, New Jersey does not permit partition of the property, as would normally be the case between tenants in common. Additionally, New Jersey does permit a creditor of an individual spouse to immediately reach the proceeds of the sale of a family residence, because New Jersey does not recognize the existence of tenancies by the entireties in personal property. In this way, New Jersey stresses the need to protect a creditor’s rights to the fullest possible extent, without disrupting the family unit. See Newman v. Chase, 70 N.J. 254, 359 A.2d 474 (1976); Fort Lee Savings & Loan Association v. Li Butti, 55 N.J. 532, 264 A.2d 33 (1970); King v. Greene, 30 N.J. 395, 153 A.2d 49 (1959). As the creditor in this case is a New Jersey corporation, New Jersey does have an interest in protecting a creditor/resident of its State. In contradistinction, Pennsylvania law holds that all property, real or personal, can be held by the entireties. A tenancy by the entireties can also be created in a chose in action and a chose in possession. In Pennsylvania, while action can be taken on entireties property by a joint creditor, no action of any sort may be taken by an individual spouse’s creditor against said property. Only divorce, or agreement by the husband and wife, can change the tenancy stature of the parties, and only then can such a creditor begin process. Pennsylvania, therefore, holds the interest of the marital unit above that of the individual spouse’s creditor. See Community Federal Savings and Loan Association v. Luckenbach, 436 Pa. 472, 261 A.2d 327 (1970); Shapiro v. Shapiro, 424 Pa. 120, 224 A.2d 164 (1966); Heatter v. Lucas, 367 Pa. 296, 80 A.2d 749 (1951); Blumner v. Metropolitan Life Insurance Company, 362 Pa. 7, 66 A.2d 245 (1949); Clingerman v. Sadowski, 335 Pa.Super. 514, 485 A.2d 11 (1984); Patwardhan v. Brabant, 294 Pa.Super. 129, 439 A.2d" }, { "docid": "12313331", "title": "", "text": "B.R. 565, 567 (Bankr.C.D.Cal.1991)). “When spouses take title to property as joint tenants, each holds his or her interest as separate property. Because the joint tenancy interest is separate, a non-debtor spouse is entitled to one-half of the proceeds from the sale of the joint tenancy property.” Id. (internal citations omitted). See Estate of Mitchell, 76 Cal.App.4th 1378, 1385, 91 Cal.Rptr.2d 192 (1999) (“A husband and wife may co-own property as joint tenants, tenants in common, or community property. Property cannot be held both as community property and in either a joint ten ancy or a tenancy in common at' the same time. Accordingly, each spouse’s interest in a joint tenancy or a tenancy in common is his or her own separate property”). The Ninth Circuit specifically recognized this rule in In re Summers, 332 F.3d 1240 (9th Cir.2003). There, it noted the presumption created by Family Code § 760 that all property acquired by a married person during the marriage is community property, but observed that “[t]he California Court of Appeal ha[d] concluded that this community property presumption is rebuttable.... ‘[Pjroperty which is acquired by a husband and wife by a written instrument in which they are so described is presumed to be community property unless the instrument specifically states otherwise.’ ... California law [thus] supports the ... conclusion that the community property presumption is rebutted when a married couple acquires property from a third party as joint tenants.” Id. at 1242-43 (quoting Orr v. Petersen (Estate of Petersen ), 28 Cal.App.4th 1742, 1747, 34 Cal.Rptr.2d 449 (1994) (emphasis original)). Here, Joel and Delynn acquired both their initial one-half interest in the Property and the one-half interest quitclaimed by the Smiths as “husband and wife as joint tenants.” This defeats the presumption that the Property is community property, and shifts the burden to the government to adduce evidence that the Boyces actually held the Property as community property. See Kohn v. Asnani, No. H035040, 2011 WL 664116, *1 (Cal.App. Feb. 23, 2011) (Unpub. Disp.) (“We conclude that the form of title presumption is controlling in this case and that" }, { "docid": "17113841", "title": "", "text": "to divide and separate said property and hold the same as tenants in common, each an undivided one-half interest therein, “Now, Therefore, It Is Agreed by and between the parties hereto that they will convey all of the property, both real and personal which they have heretofore held as community property and held the title thereto jointly, to themselves as tenants in common so that each may have an undivided one-half interest therein and that each will execute and deliver to the other such bills of sale, deeds of conveyance and other papers and instruments necessary to convey the title to said property to each of them as tenants in common.” The Commissioner had found that the property prior to the transfer by this agreement was held in joint tenancy, and the taxpayer in his petition to the Tax Court so alleged. The Commissioner’s answer to the petition denied that allegation of the petition that the property so had been held in joint tenancy. At the trial on the evidence offered the Tax Court found that it was held as community property prior to the execution of the contract. The brief of the Commissioner points out that some of the property was held as what is known as “old” community property, i. e., acquired prior to July 29, 1927, and some acquired as community property after that date. The Commissioner’s brief concedes that if the disposition of the case is different as to the properties acquired before and after July 29, 1927, the case must be remanded for further evidence showing the amount of each of the two kinds of community property. As appears below, we are of the opinion that as to the transfer of the community property acquired prior to July 29, 1927, there is an estate tax liability, and hence the case must be remanded to the Tax Court. A. The Community Property Acquired After July 29, 1927. The Tax Court held that as to both classes of community property transfers were made in contemplation of death within 26 U.S.C.A. § 811(c). As to the post-1927 community" }, { "docid": "6850726", "title": "", "text": "and the subsequent property division order was judicially determined rather than through the agreement of the parties. . The testimony reveals that the net amount remaining on this obligation is $1500.00. . State Farm Insurance Company policy no(s) 0724-9009 and 0654-7825. The cash surrender values of the two policies is $26,000.00. . \"When dividing marital property on divorce, trial courts may impose equitable liens on one spouse's separate real property to secure the other spouse's right of reimbursement for community improvements to that property, citations omitted. Although courts may impress equitable liens on separate real property to secure reimbursement rights, they may not impress such liens, absent any compensable reimbursement interest, simply to ensure a just and right division.” Heggen v. Pemelton, 836 S.W.2d 145, 146 (Tex.1992). . This Court's Buffington decision is distinguishable from Finch in one important respect. In Buffington, the division of the property was done through agreement among the parties. The conveyance of the wife’s community interest in the homestead was in the nature of a purchase money sale. Therefore, the husband's resulting unitary interest in the homestead was subject to wife's lienhold interest in the community interest which she conveyed. Furthermore since the division of the parties' community estate was agreed husband’s community interest in the property was never extinguished by judicial action; therefore, wife’s lien was held to be valid only against the one-half interest she had conveyed and not the whole of the homestead. In Finch, the equitable lien was not consensual but resulted from a court-ordered properly division. The preexisting rights of the parties was not reordered or augmented but extinguished. . Debtor's emphasis that the lien is the result of the reimbursement to Creditor for separate funds spent on the community is irrelevant. The state court obviously found that Creditor was entitled to reimbursement from the community for these separate property funds. The state court could have ordered the community property life insurance policies surrendered to cash value to meet this obligation as part of a 'just and right' division of assets. Instead, the state court concluded that a 'just and" }, { "docid": "4764821", "title": "", "text": "been held effective to alter the nature of the property for income tax purposes. Van Dyke v. Commissioner of Internal Revenue, 9 Cir., 1941, 120 F.2d 945, 947; Boland v. Commissioner of Internal Revenue, 9 Cir., 1941, 118 F.2d 622, 624; Sparkman v. Commissioner of Internal Revenue, 9 Cir., 1940, 112 F.2d 774, 777; Van Every v. Commissioner, of Internal Revenue, 9 Cir., 1940, 108 F.2d 650, 652; Helvering v. Hickman, 9 Cir., 1934, 70 F.2d 985, 986. The issue herein, then, is whether the “Separation Agreement” between taxpayer and his wife transformed the husband’s earnings for the years 1936, 1937, 1938, and 1939 into his separate property. The “.Separation Agreement” did not completely adjust all property rights as between the husband and wife; it made no attempt to do so. However, we agree with (he Tax Court (hat it had the effect of extinguishing the community character of the husband's future earnings. Paragraph “1” of that agreement is inconsistent with a continuing community ownership of the husband’s earnings. It does not specifically declare the separate property status of future earnings, but no other status is reasonable in view of the provision that each spouse may engage in any employment or business for his separate use free from any “control, restraint or interference” by the other “as if each were unmarried.” Earnings of an unmarried person could only be his separate property and taxable to him alone. The document provides for the maintenance and support of the wife for life. The wife’s right under the agreement between the spouses to fixed payments during her husband’s life and to insurance payments after his death are in no sense analogous to her “present, existing and equal” interest in community property under § 161a of the Civil Code of California. Instead, new rights in her husband’s income arise from the terms of the “Separation Agreement” and take the place of the community property rights formerly hers by operation of law. Boland v. Commissioner of Internal Revenue, 9 Cir., 1941, 118 F.2d 622, 624. Taxpayer contends that in order to construe a contract as" }, { "docid": "15105198", "title": "", "text": "HANEY, Circuit Judge. Refund of estate taxes paid the United States was obtained by the judgment appealed from. Ida P. Goodyear and W. E. Goodyear were married in .California- on August 18, 1891. They were at that time, and continued to be thereafter, residents of California. They acquired certain community property while married prior to July 29, 1927. Since the wife had only an “expectancy” in community property prior to 1927 (Stewart v. Stewart, 204 Cal. 546, 269 P. 439), it was held that community income could not be divided between the spouses for income tax purposes. United States v. Robbins, 269 U.S. 315, 46 S.Ct. 148, 70 L.Ed. 285. At that time California Civil Code § 172 provided that “The husband has the management and control of the community personal property, with like absolute power of disposition, other than testamentary, as he has of his separate estate” subject to certain exceptions. Likewise at that time, California Civil Code § 172a provided that “The husband has the management and control of the community real property, but the wife, either personally or by duly authorized agent, must join with him in executing any instrument by which such community real property or any interest therein is leased for a longer period than one year, or is sold, conveyed, or encumbered” subject to certain exceptions. Likewise it was held that all of the community property for estate tax purposes, must be included in the value of a decedent’s estate. Wardell v. Blum, 9 Cir., 276 F. 226, certiorari denied 258 U.S. 617, 42 S.Ct. 271, 66 L.Ed. 793; Talcott v. United States, 9 Cir., 23 F.2d 897, certiorari denied 277 U.S. 604, 48 S.Ct. 601, 72 L.Ed. 1011; Title Insurance & Trust Co. v. Goodcell, 9 Cir., 60 F.2d 803, certiorari denied 288 U.S. 613, 53 S.Ct. 404, 77 L.Ed. 986. In 1923 there was an amendment to the Civil Code, § 1401 (now § 201 of the Probate Code) provided that “Upon the death of either husband or wife, one-half of the. community property belongs to the surviving spouse; the other half" }, { "docid": "12412935", "title": "", "text": "the sale of the property. John claims that the proceeds retained their community property nature. Dorothy, however, argues that her right to reimbursement under § 2640 vested in her a separate property interest in the sale proceeds to the extent of her separate property contribution to the purchase of the community property house. HI. For purposes of § 541(a)(2), all community property not yet divided by a state court at the time of the bankruptcy filing is property of the bankruptcy estate. In Miller v. Walpin (In re Miller), 167 B.R. 202 (Bankr.C.D.Cal.1994), the California Superior Court had dissolved the marriage, but retained jurisdiction to divide the community property. Before such division occurred, the wife filed for bankruptcy. “Under California law, the event which terminates liability of community property for community debts as well as debts of the other spouse is division of the community property, not dissolution of the status of the marriage.” Id. at 208. Thus, the bankruptcy court held that all community property of the divorcing couple was property of the bankruptcy estate where division of the community property had not occurred as of the date the bankruptcy was filed. We agree that under California law, division of property is the event that will sever the liability of community property for community debts, and, until division, all community property of the divorcing couple is property of the bankruptcy estate pursuant to § 541(a)(2). Because, in the present case, there is no evidence that the superior court adjudicating the Mantles’ divorce had entered any order dividing their property, the proceeds from the sale of the community property house remained community property, and therefore should have been considered property of the bankruptcy estate. The present ease can thus be distinguished from Keller v. Keller (In re Keller), 185 B.R. 796 (B.A.P. 9th Cir.1995), wherein the bankruptcy petition was filed after a final divorce judgment had been entered by the Superior Court for Orange County, California. IV. In reaching the above conclusion, we reject the BAP’s interpretation of § 2640 as creating a continuing and supervening separate property interest, beyond" }, { "docid": "13108413", "title": "", "text": "deed. The tenancy by the entireties is a joint tenancy modified by the theory of the common law that husband and wife are one person, Hoyt v. Winstanley, 221 Mich., 515, 518, 191 N. W. 213. As stated in Tiffany Real Property, abridged edition 1940 § 290: “While a conveyance or devise to a husband and wife ordinarily creates a tenancy by entireties, an intention clearly expressed that they shall take as tenants in common, or as joint tenants, is effective.” It appears that mere nomenclature is not the sole controlling factor in determining the character of an estate, Hoyt v. Winstanley, supra. The most important incident of an estate by the entireties is that the survivor, whether husband or wife, is entitled to the whole and that this right cannot be defeated by a conveyance by the other tenant to a stranger, Tiffany, § 291. Formerly, there was no estate by entirety in personal property, in Michigan. However, by Act 212 of the Public Laws of 1927, it was provided that “All bonds * * * payable to persons who are husband and wife * * * shall be held by such husband and wife in joint tenancy unless otherwise therein expressly provided, in the same manner and subject to the same restrictions, consequences and conditions as are incident to the ownership of real es tate held jointly hy husband and wife * * *.” It is said by Judge Moore in his treatise on “Michigan Community Property” (1948), West Pub. Co., in reference to this statute: “ft is still an open question, at least from the standpoint of the rights of creditors, as to whether this statute created an entirety interest in personalty, or merely a joint tenancy with right of survivorship.” The incidence of the bonds here in question, as governed by the regulations in respect to their issue, is that while there is preserved the right of survivorship, that right is preserved only when co-ownership is not otherwise terminated under circumstances recognized by the regulations. The present bonds within certain limitations may be reached by creditors" }, { "docid": "8526529", "title": "", "text": "arise from the marital relationship. In our first encounter with § 2043(b)(1) (then denominated § 804), we were asked to decide whether an ex-wife’s waiver, in a separation agreement, of her right to support payments constituted adequate consideration for her ex-husband’s promise to make regular payments to her for her life. Meyer’s Estate v. Commissioner, 110 F.2d 367, 368-69 (2d Cir.), cert. denied, 310 U.S. 651, 60 S.Ct. 1103, 84 L.Ed. 1416 (1940). According to I.R.C. § 2034 (then § 811(b)), the decedent’s gross estate expressly included two categories of a surviving spouse’s marital property interests: (1) dower or curtesy and (2) those interests existing “by virtue of a statute creating an estate in lieu of dower or curtesy.” Section 2043(b)(1), by contrast, listed three categories of rights, the waiver of which could not serve as adequate consideration for a transfer of property away from an estate: (1) dower or curtesy; (2) statutory substitutes for dower and curtesy; and (3) other marital rights in the decedent’s property or estate. Apparently finding it significant that § 2043(b)(1) — unlike § 2034 — had added the third category of “other marital rights,” we held that this third category should be read to encompass not only substitutes for dower and curtesy — that is, marital rights that accrue upon one spouse’s death— but all rights that arise out of the marital relationship, including those that accrue upon marriage or, later, upon divorce. Because a wife’s right to support payments under New York law arose out of her marriage, we held that it was an “other marital right[ ] in the decedent’s property or estate” that could not serve as adequate consideration for a claim against the estate. Id. at 368-69. Judge Learned Hand dissented, on the theory that the wife’s right to support was not a right to the decedent’s “property or estate.” As Judge Hand reasoned, the wife relinquished an in personam claim against her husband, whereas the tax code spoke only about in rem claims against his property. More important, Hand argued that, since the payment of support was not a" }, { "docid": "13108412", "title": "", "text": "presentation and: surrender of the bond, except that no proceedings will be recognized that, give effect to an attempted voluntary transfer inter vivos or impair the rights of survivorship conferred by the regulations upon a surviving co-owner or beneficiary. Judgment creditors will have the right to payment (but not to reissue) and if a debtor is not the sole owner of the bonds, payment will be made only to the extent of his interest therein, which must be determined by the court, or otherwise validly esablished. The escrow agreement relieves us of need for considering the extent of appellants’ interest in the bonds if less than total. Since the appellants assert immunity to process by way of execution under both Michigan and federal law, we consider first the inescapable incidence of an estate by the entireties in Michigan. There, the common law rule is unchanged by statute and a conveyance to husband and wife without more conveys such estate but may create one in joint tenancy or in common, if explicitly so stated in the deed. The tenancy by the entireties is a joint tenancy modified by the theory of the common law that husband and wife are one person, Hoyt v. Winstanley, 221 Mich., 515, 518, 191 N. W. 213. As stated in Tiffany Real Property, abridged edition 1940 § 290: “While a conveyance or devise to a husband and wife ordinarily creates a tenancy by entireties, an intention clearly expressed that they shall take as tenants in common, or as joint tenants, is effective.” It appears that mere nomenclature is not the sole controlling factor in determining the character of an estate, Hoyt v. Winstanley, supra. The most important incident of an estate by the entireties is that the survivor, whether husband or wife, is entitled to the whole and that this right cannot be defeated by a conveyance by the other tenant to a stranger, Tiffany, § 291. Formerly, there was no estate by entirety in personal property, in Michigan. However, by Act 212 of the Public Laws of 1927, it was provided that “All bonds *" }, { "docid": "17113840", "title": "", "text": "DENMAN, Chief Judge. This is a petition for review of a Tax Court decision upholding the Commissioner’s determination of a deficiency in petitioner’s estate tax return. It presents the question whether an agreement between a husband and wife changing the form of ownership of their property from community to tenancy in common in contemplation of death requires the inclusion of all the property in the husband’s gross estate under 26 U.S.C.A. §§ 811(c) and 811(d) (5) when he predeceases the wife. Petitioner is the executrix of her husband’s estate, and contends that the Tax Court erred in upholding the Commissioner’s determination. Petitioner and her husband entered into an agreement on December 2, 1942, the pertinent portions of which recited that: “Whereas, they [husband and wife] have accumulated and acquired certain property since their said marriage, all of which property has been and is up to this time community property and, “Whereas, the parties hereto have heretofore held the title to all their property, both real and personal, as joint tenants and it is their desire to divide and separate said property and hold the same as tenants in common, each an undivided one-half interest therein, “Now, Therefore, It Is Agreed by and between the parties hereto that they will convey all of the property, both real and personal which they have heretofore held as community property and held the title thereto jointly, to themselves as tenants in common so that each may have an undivided one-half interest therein and that each will execute and deliver to the other such bills of sale, deeds of conveyance and other papers and instruments necessary to convey the title to said property to each of them as tenants in common.” The Commissioner had found that the property prior to the transfer by this agreement was held in joint tenancy, and the taxpayer in his petition to the Tax Court so alleged. The Commissioner’s answer to the petition denied that allegation of the petition that the property so had been held in joint tenancy. At the trial on the evidence offered the Tax Court found" }, { "docid": "8526536", "title": "", "text": "not fit the mold of the first two phrases. See the dissenting opinion in Meyer’s Estate v. Commissioner, 110 F.2d 367, 369 ..., in which Judge Learned Hand took this approach to interpreting the phrase “marital rights in the decedent’s property or estate.” For example, since dower and curtesy are commonly associated only with real property, if under State law a surviving spouse is entitled to some interest in decedent’s personalty, this interest is of a type which the third phrase was designed to cover — since it would not be covered by the first two phrases. Statutory interpretation of section 2043(b) is an almost classic case for application of the doctrine ejusdem generis. 45 T.C. at 339-40 (footnote omitted). Subsequently, in Estate of Carli v. Commissioner, 84 T.C. 649, 1985 WL 15335 (1985), the Tax Court held that, in a prenuptial agreement, a wife’s relinquishment of her community property rights in her future husband’s earnings during marriage constituted adequate and full consideration for the husband’s promise to give her a life estate in their residence upon his death if they remained married. Citing Glen, the Tax Court explained that it had consistently taken the position that the phrase “other marital rights”, for the purposes of determining whether a transfer or a claim was made for “consideration in money or money’s worth”, embraces those rights conferred upon a surviving spouse by local law upon the death of his or her spouse. This definition does not, however, include any rights a spouse may have by virtue of the marriage in the other spouse’s property during their joint lives. 84 T.C. at 657 (citations omitted). Significantly, moreover, no other circuit to consider the issue has adopted the broad rule we set forth in Meyer’s Estate. Those circuits have instead followed the Commissioner and held that certain other rights connected to the marital relationship — such as spousal support rights — can sometimes constitute suitable consideration for a transfer of property under the estate and gift tax laws. See Estate of Kosow, 45 F.3d 1524, 1531 (11th Cir.1995) (citing Glen and Carli with" } ]

[ { "docid": "7841794", "title": "", "text": "make it clear that Billups had knowledge of his claims during the bankruptcy proceedings. As to motive, it is undisputed that Bill-ups stood to gain an advantage by concealing the claims from the bankruptcy court. It is unlikely he would have received the benefit of a conversion to Chapter 7 followed by a no asset, complete discharge had his creditors, the trustee, or the bankruptcy court known of a lawsuit claiming millions of dollars in damages. As discussed more fully below, Billups even acknowledges, at least implicitly, that disclosing this information would have likely changed the result of his bankruptcy because he now seeks to re-open his bankruptcy to include the undisclosed claims. Given these undisputed facts, we think the district court correctly concluded that Bill-ups possessed the requisite intent to mislead the bankruptcy court and correctly barred him from pursuing his discrimination claims, at least to the extent that he sought money damages. In an attempt to remedy the situation, Billups argues that he should now be allowed to re-open his bankruptcy case to amend his filings and include his lawsuit against Pemco. We disagree. The success of our bankruptcy laws requires a debtor’s full and honest disclosure. Allowing Billups to back-up, re-open the bankruptcy case, and amend his bankruptcy filings, only after his omission has been challenged by an adversary, suggests that a debtor should consider disclosing potential assets only if he is caught concealing them. This so-called remedy would only diminish the necessary incentive to provide the bankruptcy court with a truthful disclosure of the debtors’ assets. See Traylor v. Gene Evans Ford, LLC, 185 F.Supp.2d 1338, 1340 (N.D.Ga.2002)(denying a debt- or’s request to back up and disclose a previously undisclosed claim to the bankruptcy court in the face of an adversary’s challenge); Scoggins v. Arrow Trucking Co., 92 F.Supp.2d 1372, 1376 (S.D.Ga. 2000)(same); Chandler v. Samford University, 85 F.Supp.2d 861, 863-865 (N.D.Ala.1999)(applying the doctrine of judicial estoppel to bar a plaintiff from asserting a previously undisclosed tort claim, even though she eventually informed her attorney and the bankruptcy court of the claim). B. Application to Injunctive" } ]

[ { "docid": "18044170", "title": "", "text": "point for our analysis is that our cases have not addressed the effect of an inadvertent or mistaken omission from a bankruptcy filing. Many of the dissent’s arguments hinge on its repeated assertions that our previous cases have already answered this question, dissent at 279-80, 282-86, despite the fact that not one of our previous cases has even considered it. We are unwilling to glean the legal standard for what constitutes “inadvertence or mistake” in a bankruptcy filing from cases that plainly did not concern that factor. As explained below, we agree with Plaintiff that the district court erred in applying the narrow interpretation of “inadvertence” because, in the circumstances, that interpretation is too stringent. A key factor is that Plaintiff reopened her bankruptcy proceedings and filed amended bankruptcy schedules that properly listed this claim as an asset. When a plaintiff-debtor has not reopened bankruptcy proceedings, a narrow exception for good faith is consistent with New Hampshire and with the policies animating the doctrine of judicial estoppel. The three primary New Hampshire factors are still met (inconsistency, bankruptcy court accepted the contrary position, to the debt- or’s unfair advantage). And, as courts re peatedly stress, the importance of Ml disclosure in bankruptcy proceedings “cannot be overemphasized.” Coastal Plains, 179 F.3d at 208; see also, e.g., Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 362 (3d Cir.1996) (“[T]he importance of full and honest disclosure cannot be overstated.”); Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 417 (3d Cir.1988) (holding that “we cannot overemphasize the debtor’s obligation” to provide Ml disclosure). In sum, given the strong need for Ml disclosure in bankruptcy proceedings and the fact that the plaintiff-debtor received an unfair advantage in the bankruptcy court, it makes sense to apply a presumption of deliberate manipulation. See Eastman, 493 F.3d at 1159 (“That he well knew of his pending lawsuit and simply did not disclose it to the bankruptcy court is the only reasonable inference to be drawn from the evidence.”). But where, as here, the plaintiff-debtor reopens bankruptcy proceedings, corrects her initial error, and allows" }, { "docid": "8259670", "title": "", "text": "him — responsible for failing to disclose this lawsuit in 2003. See Plaintiffs Motion to Add Additional Plaintiff ¶ 2. The Court rejects this argument. See Barger v. City of Cartersville, 348 F.3d 1289, 1295 (11th Cir.2003) (concluding, in similar circumstances, that “the attorney’s omission is no panacea”). . Mr. Moses' position seems to be that there is no need to cure his failure to disclose this lawsuit in the 2007 bankruptcy proceeding because his Chapter 13 plan was rejected by the bankruptcy court in that case. See Pl.’s Opp. ¶ 3. . Although Mr. Moses has not raised the point, the Court observes that the D.C. Circuit has expressed some wariness about the doctrine of judicial estoppel. See Konstantinidis v. Chen, 626 F.2d at 937. The Court discounts that expression of wariness for two reasons. First, jurisdiction in the Konstantin-idis case — unlike this case — was based on diversity, and the Konstantinidis court declined to apply judicial estoppel primarily because the doctrine (in its view) lacked vitality under District of Columbia law. Incidentally, there are recent indications that this view is no longer accurate. See Porter Novelli, Inc. v. Bender, 817 A.2d 185 (D.C.2003). Second, the Konstantinidis court did not have the benefit of the Supreme Court’s reasoning and decision in New Hampshire v. Maine. See In re Enron Corp. Securities, Derivative & \"Erisa\" Litigation, 391 F.Supp.2d 541, 576 n. 41 (S.D.Tex.2005). . Some courts have held that it is inappropriate to apply the doctrine of judicial estoppel to bar claims for injunctive relief. See Barger v. City of Cartersville, 348 F.3d at 1297. Mr. Moses is not seeking injunctive relief. . This is undisputed both in the sense that Mr. Moses' opposition to Howard’s renewed motion for summary judgment does not include a \"separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated,” see L. CIV. R. 7(h) — thereby allowing the Court to regard Howard’s version of the facts as conceded— and in the sense that Mr. Moses’ opposition acknowledges" }, { "docid": "8259669", "title": "", "text": "rather, the debtor is allowed to extend or reduce the balance of his debts through a plan of rehabilitation. In contrast, Chapter 7 allows a trustee to collect and liquidate a debtor's assets, if any, in exchange for a discharge of the debtor’s debts.” Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1284 n. 1 (11th Cir.2002). . In his 2003 Statement of Financial Affairs, Mr. Moses did list \"a case captioned Primus Automotive Financial Services, Inc./Ford Motor Credit Co. v. Moses, Civil Action No. 19259-01, a vehicle repossession action in the District Court for Upper Marlboro, Maryland that he stated culminated in a September 13, 2002 judgment garnishing [his] wages.” Def.’s Facts ¶ 13. In addition, in his 2007 Statement of Financial Affairs, Mr. Moses listed \"a garnishment proceeding against him in the Prince George’s District Court, captioned Harbor Bank v. Moses, Civil Action No. 34603-2005.” Id. ¶ 19. . Relatedly, Mr. Moses also seems to argue that this Court should hold the attorney who represented him in the 2003 bankruptcy proceeding — not him — responsible for failing to disclose this lawsuit in 2003. See Plaintiffs Motion to Add Additional Plaintiff ¶ 2. The Court rejects this argument. See Barger v. City of Cartersville, 348 F.3d 1289, 1295 (11th Cir.2003) (concluding, in similar circumstances, that “the attorney’s omission is no panacea”). . Mr. Moses' position seems to be that there is no need to cure his failure to disclose this lawsuit in the 2007 bankruptcy proceeding because his Chapter 13 plan was rejected by the bankruptcy court in that case. See Pl.’s Opp. ¶ 3. . Although Mr. Moses has not raised the point, the Court observes that the D.C. Circuit has expressed some wariness about the doctrine of judicial estoppel. See Konstantinidis v. Chen, 626 F.2d at 937. The Court discounts that expression of wariness for two reasons. First, jurisdiction in the Konstantin-idis case — unlike this case — was based on diversity, and the Konstantinidis court declined to apply judicial estoppel primarily because the doctrine (in its view) lacked vitality under District of Columbia law. Incidentally," }, { "docid": "18044172", "title": "", "text": "the bankruptcy court to re-process the bankruptcy with the Ml and correct information, a presumption of deceit no longer comports with New Hampshire. Along with most of our sister circuits, we have held that — at least where file plaintiff-debtor does not claim inadvertence or mistake — the reopening of a bankruptcy case is generally irrelevant to the analysis of judicial estoppel. Eastman, 493 F.3d at 1160; Barger v. City of Cartersville, 348 F.3d 1289, 1297 (11th Cir.2003); Burnes, 291 F.3d at 1288; Hamilton, 270 F.3d at 784; Oneida, 848 F.2d at 418. That is, even if a plaintiff-debtor corrects the initial mistake and no longer receives a benefit in bankruptcy court, judicial estoppel still applies — wiping out a potentially meritorious action against an unrelated third party. Courts have provided three primary justifications for the rule. First, as noted above, supra pp. 272-73, Ml disclosure in bankruptcy is essential to the functioning of the bankruptcy system, a fact that “cannot be overemphasized.” Coastal Plains, 179 F.3d at 208. Second, the initial disclosures failed to tell the creditors about the lawsuit. See, e.g., Hamilton, 270 F.3d at 784 (holding that an initial “discharge of debt by a bankruptcy court, under these circumstances, is sufficient acceptance to provide a basis for judicial estoppel, even if the discharge is later vacated”); Oneida, 848 F.2d at 418 (“[The original bankruptcy plan] was informationally deficient, and not cured by the later modification. The original plan failed to alert the creditors to the possible financial benefits enuring to them upon the successful prosecution of the claim.” (footnote omitted)). Finally, and perhaps most importantly, courts have held that application of judicial estoppel is necessary in order to incentivize future debtors (and their lawyers) to provide full disclosure. In an oft-quoted passage, one court wrote: The success of our bankruptcy laws requires a debtor’s full and honest disclosure. Allowing [the debtor] to back-up, re-open the bankruptcy case, and amend his bankruptcy filings, only after his omission has been challenged by an adversary, suggests that a debtor should consider disclosing potential assets only if he is caught concealing" }, { "docid": "15042725", "title": "", "text": "arise in every case ,but only “in general.” Robinson, 595 F.3d at 1275. In Robinson, the Court stated that a trial court’s finding of intent based on knowledge and motive can be “overturn[ed]” should the plaintiff “presen[t] sufficient evidence.” Id. at 1276. In Ajaka, despite evidence of knowledge and motive, the Court ruled “there is insufficient proof of Ajaka’s intent to support” summary judgment for the defendant based on judicial estoppel. 453 F.3d at 1346 & n. 8. As Robinson and Ajaka make clear, other facts may appear in the record taking a particular case out of the general and supporting a determination that, despite knowledge and motive, the plaintiff did not harbor an intent to make a mockery of the judicial system — or at least creating a genuine issue of material fact in that regard. The Court concludes that this is such a case. The following facts are key to the Court’s determination. First, the plaintiff did not fail to disclose an existing claim in his original bankruptcy filings but failed to amend those filings in a timely manner once the claim arose. Second, the plaintiff did amend his bankruptcy schedules, and he did so barely two months after filing this action and barely three months after first hearing that he might have a claim. Third, his discovery of a claim, filing'of a lawsuit, and amendment of his schedules all transpired in the second year of a confirmed five-year re-organization plan, and no events significant to the bankruptcy, occurred, and no deadlines passed or were imminent, during this period. The facts of this case are thus unlike those of any of the Eleventh Circuit cases on which the defendant relies. The plaintiff in De Leon failed to disclose an existing EEOC charge in his original schedules and then failed to amend his schedules when he filed suit. The plaintiffs non-disclosure lasted 17 months after filing his petition and 11 months after filing suit, and during this prolonged period of non-disclosure the plaintiff obtained confirmation of his Chapter 13 plan of reorganization. 321 F.3d at 1290-91. The plaintiff in" }, { "docid": "15042731", "title": "", "text": "be realized. In light of those circumstances, that the plaintiff amended after the defendant asserted judicial estop-pel is at best ambiguous. Because this matter is before the Court on motion for summary judgment, the defendant does not win in the face of ambiguity. CONCLUSION For the reasons set forth above, the defendant’s motion for summary judgment is denied. . Judicial estoppel is an affirmative defense. E.g., Mirando v. United States Department of Treasury, 766 F.3d 540, 544 (6th Cir.2014); Nature Conservancy v. Wilder Corp., 656 F.3d 646, 650 (7th Cir.2011); Reed v. City of Arlington, 650 F.3d 571, 576 (5th Cir.2011); Hansen v. Haiper Excavating, Inc., 641 F.3d 1216, 1227 (10th Cir.2011). . This case is also unlike Hands v. Winn-Dixie Stores, Inc., 2010 WL 4496798 (S.D.Ala.2010), a decision of the Court often cited by the defendant. The plaintiff in Hands failed to disclose an existing EEOC charge in his original schedules and then failed to amend his schedules when he filed suit. The plaintiff's non-disclosure lasted 34 months after filing his petition and eleven months after filing suit, and during this prolonged period of nondisclosure the plaintiff obtained confirmation of his Chapter 13 plan of re-organization. Id. at *1-2, *3, *5. . \"The application of judicial estoppel does not require that the nondisclosure must lead to a different result in the bankruptcy proceeding.\" Robinson, 595 F.3d at 1275 (emphasis added). The failure to affect the result, however — and in this case, the absence of any real possibility of affecting the result — is a circumstance that may weigh in the determination whether the plaintiff intended to make a mockery of the judicial system." }, { "docid": "21630773", "title": "", "text": "any general formulation of principle,” New Hampshire v. Maine, 532 U.S. 742, 750, 121 S.Ct. 1808, 1815, 149 L.Ed.2d 968 (2001) (citations omitted), we generally consider two factors. “First, it must be shown that the allegedly inconsistent positions were made under oath in a prior proceeding. Second, such inconsistencies must be shown to have been calculated to make a mockery of the judicial system.” Burnes, 291 F.3d at 1285 (citation omitted). The district court determined that both the first and second prong of this test were met. Trustee Reynolds concedes that Parker took inconsistent positions in bankruptcy court and district court. Reynolds argues that Parker’s inconsistent statements should not be attributed to him and that, even if judicial estoppel would bar Parker, it should not bar Reynolds from pursuing this claim on behalf of Parker’s creditors. Reynolds contends that judicial estoppel should not apply to him, as bankruptcy trustee, because he did not know of the discrimination claim during the bankruptcy proceedings and, therefore, did not take inconsistent positions in the courts. Moreover, Reynolds posits that applying judicial estoppel to him would not serve the policy of encouraging honest disclosure to the courts because Reynolds was never dishonest with the courts. The correct analysis here compels the conclusion that judicial estoppel should not be applied at all. Moreover, based on our analysis which follows, it is questionable as to whether judicial estoppel was correctly applied in Bumes. The more appropriate defense in the Bumes case was, instead, that the debtor lacked standing. Generally speaking, a pre-petition cause of action is the property of the Chapter 7 bankruptcy estate, and only the trustee in bankruptcy has standing to pursue it. Barger v. City of Cartersville, 348 F.3d 1289, 1292 (11th Cir.2003). Section 541 of the Bankruptcy Code provides that virtually all of a debtor’s assets, both tangible and intangible, vest in the bankruptcy estate upon the filing of a bankruptcy petition. 11 U.S.C. § 541(a)(1) (providing that the bankruptcy estate includes “all legal or equitable interest of the debtor in property as of the commencement of the case”). Such property includes" }, { "docid": "11530430", "title": "", "text": "prior legal proceeding. Bridgeway Corp., 201 F.3d at 141. A party invoking\" judicial estoppel must show that: (1) the party against whom the estoppel is asserted took an inconsistent position in a prior proceeding, and (2) that position was adopted by the first tribunal in some manner. Id. The doctrine seeks to preserve the sanctity of the oath by demanding absolute truth and consistency in all sworn positions. The doctrine also seeks to protect judicial integrity by avoiding the risk of inconsistent results in two proceedings. Bates v. Long Island Railroad Co., 997 F.2d 1028, 1037-38 (2d Cir.1993). To warrant judicial es-toppel, the contrary positions must be “fundamentally inconsistent” or “clearly contradictory.” Bridgeway Corp., 201 F.3d at 141 (emphasis omitted). Here, defendant argues that plaintiff should be judicially estopped from asserting a claim for money damages because, in her bankruptcy petition, she listed the value of her FDCPA Claim as zero dollars. Defendant relies, in part, on Barger v. City of Cartersville, 348 F.3d 1289 (11th Cir.2003). In that case, the plaintiff filed a lawsuit alleging employment discrimination following a demotion. Initially, she sought only equitable relief, but later amended' her complaint to add claims for compensatory and punitive damages. During the pendency of the suit, the plaintiff filed a voluntary petition for Chapter 7 bankruptcy. In the petition, plaintiff represented that she had not been a party to any lawsuit during the year preceding her petition. She verbally informed the bankruptcy trustee (at a time subsequent to the amendment of her discrimination complaint) of the existence of the civil action, but indicated that the suit merely sought reinstatement to her prior position. After the bankruptcy court granted the plaintiff a no-asset discharge of her debts, the defendants in the' discrimination suit moved for a finding of judicial estoppel as to her claims for money damages. The district court granted the motion, and the Court of Appeals for the Eleventh Circuit affirmed, making a specific finding that: “When the bankruptcy trustee asked [the plaintiff] for the monetary value of the lawsuit, she informed him that she only sought reinstatement of" }, { "docid": "6843461", "title": "", "text": "we REVERSE the district court’s decision to the extent that it prohibits Barger from seeking injunctive relief. AFFIRMED in part and REVERSED in part. BARKETT, Circuit Judge, dissenting: I dissent because I believe that the circumstances of this case quite plainly militate against application of the doctrine of judicial estoppel. Donna Barger not only revealed her pending lawsuit to her bankruptcy attorney, who admitted he simply neglected to list the suit on Barger’s bankruptcy schedule due to an oversight, but she also specifically announced the suit at an open creditors’ meeting to the bankruptcy trustee. The majority cites the appropriate standards for judicial estoppel under Eleventh Circuit law: a party must have taken inconsistent positions under oath, and these inconsistencies “must be shown to have been calculated to make a mockery of the judicial system.” Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1284 (11th Cir.2002). As the majority also notes, these two factors “are not inflexible,” and courts must “always give due consideration to all of the circumstances of a particular case.” Id. Because Barger’s actions clearly were not “calculated to make a mockery of the judicial system,” id., I believe the district court abused its discretion in applying the doctrine. After filing for Chapter Seven protection, Barger signed several bankruptcy forms prepared by her attorney, one of which failed to list her pending lawsuit against the city. However, at a meeting of creditors two months later, Barger orally informed the bankruptcy trustee of her discrimination lawsuit. Although she described her suit as one for reinstatement of her prior position and did not specifical ly mention the other damages sought, this voluntary disclosure undermines any suggestion that she intended to hide the suit from the trustee or the creditors. Moreover, had she listed the suit on the bankruptcy schedule, she would have been able to pursue the litigation after it was abandoned by the trustee. I cannot agree with the majority that relief under these facts is foreclosed by Burnes, 291 F.3d at 1287-88, and De Leon v. Comcar Industries, 321 F.3d 1289 (11th Cir.2003). The debtors in those" }, { "docid": "18044171", "title": "", "text": "met (inconsistency, bankruptcy court accepted the contrary position, to the debt- or’s unfair advantage). And, as courts re peatedly stress, the importance of Ml disclosure in bankruptcy proceedings “cannot be overemphasized.” Coastal Plains, 179 F.3d at 208; see also, e.g., Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 362 (3d Cir.1996) (“[T]he importance of full and honest disclosure cannot be overstated.”); Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 417 (3d Cir.1988) (holding that “we cannot overemphasize the debtor’s obligation” to provide Ml disclosure). In sum, given the strong need for Ml disclosure in bankruptcy proceedings and the fact that the plaintiff-debtor received an unfair advantage in the bankruptcy court, it makes sense to apply a presumption of deliberate manipulation. See Eastman, 493 F.3d at 1159 (“That he well knew of his pending lawsuit and simply did not disclose it to the bankruptcy court is the only reasonable inference to be drawn from the evidence.”). But where, as here, the plaintiff-debtor reopens bankruptcy proceedings, corrects her initial error, and allows the bankruptcy court to re-process the bankruptcy with the Ml and correct information, a presumption of deceit no longer comports with New Hampshire. Along with most of our sister circuits, we have held that — at least where file plaintiff-debtor does not claim inadvertence or mistake — the reopening of a bankruptcy case is generally irrelevant to the analysis of judicial estoppel. Eastman, 493 F.3d at 1160; Barger v. City of Cartersville, 348 F.3d 1289, 1297 (11th Cir.2003); Burnes, 291 F.3d at 1288; Hamilton, 270 F.3d at 784; Oneida, 848 F.2d at 418. That is, even if a plaintiff-debtor corrects the initial mistake and no longer receives a benefit in bankruptcy court, judicial estoppel still applies — wiping out a potentially meritorious action against an unrelated third party. Courts have provided three primary justifications for the rule. First, as noted above, supra pp. 272-73, Ml disclosure in bankruptcy is essential to the functioning of the bankruptcy system, a fact that “cannot be overemphasized.” Coastal Plains, 179 F.3d at 208. Second, the initial disclosures failed to" }, { "docid": "6843460", "title": "", "text": "he is caught concealing them. This so-called remedy would only diminish the necessary incentive to provide the bankruptcy court with a truthful disclosure of the debtor’s assets.” Burnes at 1288 (citation omitted). As such, Barger’s disclosure upon re-opening the bankruptcy estate deserves no favor. 2) Application of Judicial Estoppel to Barger’s Injunctive Relief Claims In Bumes, the Court decided that while judicial estoppel barred the plaintiff-appellant from pursuing claims for monetary damages, the doctrine did not prohibit him from pursuing claims which add no monetary value to the bankruptcy estate. Id. at 1289. Thus, the Court allowed the plaintiff-appellant to proceed on his claims for injunctive relief. Barger’s claim for injunctive relief (i. e. her request for reinstatement) would have added nothing of value to the bankruptcy estate even if she properly disclosed it. Therefore, like the plaintiff-appellant in Bumes, judicial estoppel does not prohibit Barger from pursuing any claims for in-junctive relief that she may have. CONCLUSION Accordingly, we AFFIRM the district court’s judgment insofar as it dismissed Barger’s claims for monetary damages. However, we REVERSE the district court’s decision to the extent that it prohibits Barger from seeking injunctive relief. AFFIRMED in part and REVERSED in part. BARKETT, Circuit Judge, dissenting: I dissent because I believe that the circumstances of this case quite plainly militate against application of the doctrine of judicial estoppel. Donna Barger not only revealed her pending lawsuit to her bankruptcy attorney, who admitted he simply neglected to list the suit on Barger’s bankruptcy schedule due to an oversight, but she also specifically announced the suit at an open creditors’ meeting to the bankruptcy trustee. The majority cites the appropriate standards for judicial estoppel under Eleventh Circuit law: a party must have taken inconsistent positions under oath, and these inconsistencies “must be shown to have been calculated to make a mockery of the judicial system.” Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1284 (11th Cir.2002). As the majority also notes, these two factors “are not inflexible,” and courts must “always give due consideration to all of the circumstances of a particular case.” Id. Because" }, { "docid": "2543578", "title": "", "text": "Chapter 7 bankruptcy has no effect on the court’s inquiry, because the need for complete and honest disclosure exists in all types of bankruptcies. DeLeon v. Comcar Industries, Inc., 321 F.3d 1289, 1291 (11th Cir.2003). Mason also points to his own Declaration (Doc. 48-2) to show that he had no personal knowledge that his discrimination claim should have been included on the Petition, and claims that he had no intent to manipulate the system because he informed his bankruptcy attorney’s office of his claim prior to filing the Petition. (Doc. 47, p. 42). Citing the Eleventh Circuit’s opinion in Ajaka v. BrooksAmerica Mortgage Corp., 453 F.3d 1339 (11th Cir.2006), Mason argues that, like the plaintiff in that case, his attorney was notified of the claim but did not amend the Petition, and argues that the court should not impute the bankruptcy attorney’s error to Mason. (Doc. 47, p. 42). This argument does not forestall the application of judicial estoppel. Mason had over three months to review his schedules and make amendments before his plan was confirmed on November 11, 2010, but evidently did not take the opportunity to do so. Mason voluntarily chose his attorney as his representative in the bankruptcy action and, therefore, cannot escape any deficiencies in his case even if they are the result of negligence or omissions on his attorney’s part. Link v. Wabash Railroad, Co., 370 U.S. 626, 633, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); see also Barger v. City of Cartersville, Ga., 348 F.3d 1289, 1295 (“[I]f an attorney’s conduct falls substantially below what is reasonable under the circumstances, the client’s remedy is against the attorney in a suit for malpractice.”); Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1115 (11th Cir.1993) (“This Court rejected that argument even though such a result appear[ed] to penalize innocent clients for the forgetfulness of their attorneys.”) (citations omitted). Furthermore, Mason’s case is distinguishable from Ajaka, because in that case, unlike here, the defendant filed for a declaratory judgment regarding judicial estoppel before even being served with the complaint. Ajaka, 453 F.3d at 1343. The Eleventh Circuit" }, { "docid": "15042723", "title": "", "text": "these two facts as dispositive, (Doc. 10 at 6-9), but they are not. The defendant assumes that, if knowledge and motive are shown, inadvertence cannot be shown and intent to make a mockery of the judicial system is the only remaining conclusion available. The Court disagrees. The Eleventh Circuit has repeatedly identified knowledge and motive merely as “sufficient” evidence from which to “infer” the requisite intent. See Barger v. City of Cartersville, 348 F.3d 1289, 1296 (11th Cir.2003) (the plaintiffs knowledge and motive “are sufficient evidence from which to infer her intentional manipulation”); De Leon, 321 F.3d at 1292 (from knowledge and motive, “we can infer” intent- to make a mockery of the judicial system); Burnes, 291 F.3d at 1287-88 (“[I]t is clear that the record in this case contains sufficient evidence from which to infer intentional manipulation by [the plaintiff].”). Such language suggests that an inference of intent from the existence of knowledge and motive is permissive only. As noted by Judge Barkett in Barger, “Bumes and De Leon do not hold that the failure to meet the specific ‘inadvertence criteria’ automatically implies an intent to ‘make a mockery of the judicial system.’ Although a finding of inadvertence completely precludes judicial estoppel under Bumes, failure to meet the specific inadvertence criteria does not mean that judicial estoppel must apply.” 348 F.3d at. 1298 (Barkett, J., dissenting). And numerous sister courts have agreed that the inference of intent drawn from the existence of knowledge and motive is permissive only, not mandatory. See Melton v. National Dairy Holdings, L.P., 2009 WL 653024 at *5 (M.D.Ala.2009) (Moorer, M.J.); Roots v. Morehouse School of Medicine, Inc., 2009 WL 4798217 at *7 (N.D.Ga. 2008); Thompson v. Quarles, 392 B.R. 517, 527 (S.D.Ga.2008); Jackson v. Advanced Disposal Services, Inc., 2008 WL 958110 at *4 (M.D.Fla.2008) (Covington, D.J.); Snowden v. Fred’s Stores, Inc., 419 F.Supp.2d 1367, 1373 (M.D.Ala.2006) (Thompson, D.J.); Wheeler v. Florida Department of Corrections, 2006 WL 2321114 at *6 n. 7 (M.D.Fla.2006) (Corrigan, D.J.). Even if the inference of intent derived from knowledge plus motive is mandatory rather than permissive, the inference does not" }, { "docid": "15042722", "title": "", "text": "to timely amend a Chapter 13 reorganization plan to reflect a pending claim while simultaneously purs[u]ing that claim in another court of law constitutes inconsistent positions under oath.”). The plaintiff makes no argument to the contrary. “[T]he doctrine of judicial es-toppel applies in situations involving intentional contradictions, not simple error or inadvertence.” Burnes, 291 F.3d at 1286. The “requisite intent to mislead the bankruptcy court” need not be proved directly; rather, “deliberate or intentional manipulation can be inferred from the record.” Id. at 1286-87. In particular, “the debt- or’s failure to satisfy its statutory disclosure duty is ‘inadvertent’ only when, in general, the debtor either lacks knowledge of the undisclosed claims or has no motive for their concealment.” Robinson, 595 F.3d at 1275 (internal quotes omitted). The plaintiff plainly had knowledge of his FLSA claim, and “a financial motive to secret assets exists under Chapter 13 ... because the hiding of assets affects the amount to be discounted and repaid.” De Leon v. Comcar Industries, Inc., 321 F.3d 1289, 1291 (11th Cir.2003). The defendant treats these two facts as dispositive, (Doc. 10 at 6-9), but they are not. The defendant assumes that, if knowledge and motive are shown, inadvertence cannot be shown and intent to make a mockery of the judicial system is the only remaining conclusion available. The Court disagrees. The Eleventh Circuit has repeatedly identified knowledge and motive merely as “sufficient” evidence from which to “infer” the requisite intent. See Barger v. City of Cartersville, 348 F.3d 1289, 1296 (11th Cir.2003) (the plaintiffs knowledge and motive “are sufficient evidence from which to infer her intentional manipulation”); De Leon, 321 F.3d at 1292 (from knowledge and motive, “we can infer” intent- to make a mockery of the judicial system); Burnes, 291 F.3d at 1287-88 (“[I]t is clear that the record in this case contains sufficient evidence from which to infer intentional manipulation by [the plaintiff].”). Such language suggests that an inference of intent from the existence of knowledge and motive is permissive only. As noted by Judge Barkett in Barger, “Bumes and De Leon do not hold that the" }, { "docid": "6843463", "title": "", "text": "two cases never disclosed their pending lawsuits to their respective bankruptcy trustees. See De Leon, 321 F.3d at 1291-92 (“Despite De Leon’s continuing duty to disclose all assets or potential assets to the bankruptcy court, he did not amend his bankruptcy documents.... ”); Burnes, 291 F.3d at 1288 (“Nevertheless, he once again failed to disclose the pending lawsuit to the bankruptcy court.”). Barger, by contrast, did disclose her claim, even if not in the legally appropriate way. The majority correctly notes that under our case law, a plaintiff may not show “inadvertence” when she knew of the facts giving rise to the inconsistency in her positions and had a motive to conceal the inconsistency. However, Burnes and De Leon do not hold that the failure to meet the specific “inadvertence criteria” automatically implies an intent to “make a mockery of the judicial system.” Although a finding of inadvertence completely pre-eludes judicial estoppel under Bumes, failure to meet the specific inadvertence criteria does not mean that judicial estoppel must apply. Rather, a party should be able to use “all of the circumstances” of her particular case in order to show that a court should not apply the equitable doctrine of judicial estoppel against her. I believe that Barger has made such a showing in this case, and I would reverse the district court. . Barger is not an attorney, and her description could simply reflect how a non-lawyer might have perceived the lawsuit. There is certainly no indication of intentional deception on her part. . Although the majority infers that Barger benefitted from non-disclosure, one might equally infer that the trustee's decision not to pursue the claim after it was brought to his attention (and his failure to act upon it subsequently) implied that the outcome in Barger’s bankruptcy case would not have changed. See also In re Barger, 279 B.R. 900, 907 (Bkrtcy.N.D.Ga.2002) (drawing this conclusion). .Although the DeLeon court recast the holding in Bumes as triggering judicial estoppel whenever the plaintiff had knowledge of the undisclosed claim and motive to conceal it, 321 F.3d at 1291, the DeLeon court" }, { "docid": "15042720", "title": "", "text": "“[Jjudicial es-toppel is applied to the calculated assertion of divergent sworn positions. The doctrine is designed to prevent parties from making a mockery of justice by inconsistent pleadings.” Id. (internal quotes omitted). There are “two primary factors for establishing the bar of judicial estoppel.” Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1273 (11th Cir.2010). “First, it must be shown that the allegedly inconsistent positions were made under oath in a prior proceeding. Second, such inconsistencies must be shown to have been calculated to make a mockery of the judicial system.” Id. (internal quotes omitted). “[Tjhese factors are not exhaustive; rather, courts must always give due consideration to the circumstances of the particular case.” Id. It is uncontroverted that the plaintiff was unaware of any possible FLSA claim when he filed his Chapter 13 petition in December 2011 or when his plan was confirmed in May 2012. (Doc. 19-1). However, a Chapter 13 debtor has a continuing duty to amend his bankruptcy schedules to disclose new assets arising after his plan is confirmed but before he receives a discharge, and “a pending lawsuit seeking monetary compensation qualifies as an asset.” Robinson, 595 F.3d at 1274-75. It is uncontroverted that the plaintiff became aware of a potential FLSA claim in mid- to late February 2014. (Doc. 19-1). He filed the instant action on March 10 and amended his bankruptcy schedules to reflect the existence of his FLSA claim on May 20. In Ajaka v. BrooksAmerica Mortgage Corp., 453 F.3d 1339 (11th Cir.2006), the plaintiff learned of a possible TILA claim on January 3, filed a TILA action on April 11, and amended his Chapter 13 bankruptcy schedules to reflect the TILA claim on June 20. Id. at 1342-43. The Eleventh Circuit noted that “[t]here is no question that Ajaka failed to timely amend his Chapter 13 reorganization plan....” Id. at 1344. The Court concludes that the plaintiff likewise failed to amend his bankruptcy schedules in a timely manner. He “therefore took inconsistent positions ... under oath in a prior proceeding.” Id.; accord Robinson, 595 F.3d at 1275 (“Ajaka held that failure" }, { "docid": "2543576", "title": "", "text": "and the right to sue letter were also issued months before Mason subsequently filed his Petition. (See Docs. 48-14, 41-1, p. 4). It is of no import that Mason did not file a lawsuit before filing his Petition, because the EEOC charges constitute “administrative proceedings” and “[o]ther contingent and unliquidated claims” that Mason was required to disclose in his SFA and Schedules. Casanova v. Pre Solutions, Inc., 228 Fed.Appx. 837, 841 (11th Cir.2007). “The property of bankruptcy estate includes all potential causes of action existing at time petitioner files for bankruptcy.” Id. (quoting Barger v. City of Cartersville, 348 F.3d 1289, 1293 (11th Cir.2003)). (b) Motive for Concealment Therefore, the issue of intent depends on whether Mason had a motive to conceal his discrimination claim. Mason claims that he had no motive to conceal his claim because his Chapter 13 debtor’s plan provides for 100% payment to creditors, both secured and unsecured. (Doc. 47, p. 43). If Mason will pay all of his creditors 100% of their claims, then, he argues, he was not motivated to conceal his discrimination claim since the inclusion of such an asset would not have increased the amount Mason had to pay. Id. Mason also points out that no creditors were prejudiced by his failure to include his claim on the Petition, and asserts that “the important fact” is that he ultimately amended the Petition to include the claim against MCS. Id. Mason’s argument conflicts with Eleventh Circuit precedent, because the doctrine of judicial estoppel protects the integrity of the judicial system, and not the litigants or other parties. Burnes, 291 F.3d at 1286. Therefore, full monetary repayment to creditors does not necessarily preclude finding a motive to conceal. Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1276 (11th Cir.2010). The “motive” at issue here stems from the possibility of defrauding the courts and “not from any actual fraudulent result,” so the fact that no creditors were prejudiced by the nondisclosure does not make the application of judicial estoppel inappropriate. Id. at 1275. Furthermore, the fact that Mason applied for Chapter 13 bankruptcy rather than" }, { "docid": "8105887", "title": "", "text": "neither compromised, litigated, nor abandoned. The bankruptcy court thus accepted his assertion that no such legal claims existed. See Stallings v. Hussmann Corp., 447 F.3d 1041, 1047 (8th Cir.2006) (“A debtor’s failure to list a claim in the ‘mandatory bankruptcy filings is tantamount to a representation that no such claim existed.’ ”) (citing In re Superior Crewboats, Inc., 374 F.3d 330, 335 (5th Cir.2004)); Howell v. Town of Leyden, 335 F.Supp.2d 248, 251 (D.Mass.2004) (nondisclosure of potential claims in bankruptcy court deprived creditors of access to a substantial potential asset, satisfying prerequisites of judicial estoppel). Graupner argues that he corrected his prior assertions when he re-opened the bankruptcy proceeding and thereby prevented any injustice from occurring. As noted above, however, the Court does not agree that Graupner made a full and fair disclosure to the bankruptcy court even in 2005. Furthermore, and in any event, the reopening of a bankruptcy proceeding five years after the discharge, and three weeks after receiving notice that defendants intended to file for summary judgment on that basis, does not preclude the operation of judicial estoppel here. The Eleventh Circuit’s opinion in Barger involves analogous facts. There, the court stated that disclosure of an asset upon reopening a bankruptcy case during the course of other litigation deserves no weight where the plaintiff only sought to reopen the bankruptcy after the defendant filed a motion to dismiss. To hold otherwise “ ‘suggests that a debtor should consider disclosing potential assets only if he is caught concealing them,’ ” which would only diminish incentives to provide truthful disclosures of the debtor’s assets in bankruptcy court. 348 F.3d at 1297 (quoting Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1288 (11th Cir.2002)). A number of courts in this circuit have similarly acknowledged the proper use of judicial estoppel to estop plaintiff debtors from tak ing positions inconsistent to those taken by them in prior bankruptcy proceedings. See, e.g., Payless Wholesale Distrib., Inc. v. Alberto Culver (P.R.) Inc., 989 F.2d 570 (1st Cir.1993); Howell, 335 F.Supp.2d at 248; Compton v. Depuy Orthopaedics, Inc., 2002 WL 1046698, at *1 (D.Mass." }, { "docid": "18044177", "title": "", "text": "781. (Here, Plaintiff voluntarily initiated the reopening.) A case may be reopened even if it has long been closed. 11 U.S.C. § 350(b); Fed. R. Bankr.P. 5010. A bankruptcy court or trustee can impose sanctions, including denial of a discharge. Fed. R. Bánkr.P. 9011. And, of course, a case may be referred to the United States Attorney’s office for criminal prosecution. Bee 18 U.S.C. § 152 (criminalizing the concealment of assets, false oaths, and claims). “The availability of such a course of action would in most cases adequately deter nondisclosure.” Oneida, 848 F.2d at 423 (Stapleton, J., dissenting). Finally, the application of judicial estoppel in these circumstances operates to the detriment primarily of innocent creditors and to the benefit of only an alleged bad actor. When a plaintiff-debtor amends his or her bankruptcy schedules to include the previously omitted lawsuit, the creditors may now stake a claim in that lawsuit. By not permitting 'the civil action to go forward, the creditors lose out on a potential recovery. See Cannon-Stokes, 453 F.3d at 448 (“Judicial estoppel is an equitable doctrine, and it is not equitable to employ it to injure creditors who are themselves victims of the debtor’s deceit.”); Oneida, 848 F.2d at 422 (Stapleton, J., dissenting) (“The [Bankruptcy] Code’s disclosure requirements are intended to protect those creditors whom a debtor’s failure to disclose hidden assets would prejudice. A fortiori, a court’s response to nondisclosure should do likewise.”). Perversely, the only “winner” in this scenario is the alleged bad actor in the estopped lawsuit. See Oneida, 848 F.2d at 422-23 (Stapleton, J., dissenting) (“The only real winner in the case as decided is the [defendant], whom the court has relieved of the responsibility of justifying its allegedly improper behavior.”). If Defendant here did, in fact, discriminate against Plaintiff, it will not have to pay the consequences of its actions, for the entirely unrelated reason that Plaintiff happened to file for bankruptcy and, possibly due to inadvertence, happened to omit the claim from her initial schedules. Further, because the application of judicial estoppel does not look to the nature of the underlying" }, { "docid": "6843462", "title": "", "text": "Barger’s actions clearly were not “calculated to make a mockery of the judicial system,” id., I believe the district court abused its discretion in applying the doctrine. After filing for Chapter Seven protection, Barger signed several bankruptcy forms prepared by her attorney, one of which failed to list her pending lawsuit against the city. However, at a meeting of creditors two months later, Barger orally informed the bankruptcy trustee of her discrimination lawsuit. Although she described her suit as one for reinstatement of her prior position and did not specifical ly mention the other damages sought, this voluntary disclosure undermines any suggestion that she intended to hide the suit from the trustee or the creditors. Moreover, had she listed the suit on the bankruptcy schedule, she would have been able to pursue the litigation after it was abandoned by the trustee. I cannot agree with the majority that relief under these facts is foreclosed by Burnes, 291 F.3d at 1287-88, and De Leon v. Comcar Industries, 321 F.3d 1289 (11th Cir.2003). The debtors in those two cases never disclosed their pending lawsuits to their respective bankruptcy trustees. See De Leon, 321 F.3d at 1291-92 (“Despite De Leon’s continuing duty to disclose all assets or potential assets to the bankruptcy court, he did not amend his bankruptcy documents.... ”); Burnes, 291 F.3d at 1288 (“Nevertheless, he once again failed to disclose the pending lawsuit to the bankruptcy court.”). Barger, by contrast, did disclose her claim, even if not in the legally appropriate way. The majority correctly notes that under our case law, a plaintiff may not show “inadvertence” when she knew of the facts giving rise to the inconsistency in her positions and had a motive to conceal the inconsistency. However, Burnes and De Leon do not hold that the failure to meet the specific “inadvertence criteria” automatically implies an intent to “make a mockery of the judicial system.” Although a finding of inadvertence completely pre-eludes judicial estoppel under Bumes, failure to meet the specific inadvertence criteria does not mean that judicial estoppel must apply. Rather, a party should be able" } ]

[ { "docid": "189169", "title": "", "text": "the district court. When, however, “this Court finds ‘an adequate, independent basis’ for the imposition of summary judgment, the district court’s judgment may be affirmed ‘regardless of the correctness of the district court’s rulings.’ ” B. APPLICABLE Law Lang’s claim raises novel issues on appeal, the resolution of which must begin with an understanding of the NASD disciplinary process and federal regulation of the over-the-counter (“OTC”) securities markets. The NASD, a private nonprofit corporation organized under the laws of Delaware, is registered with the SEC as a national securities association. As a prerequisite to its registration under the Exchange Act, the NASD was required to promulgate association rules “designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade ... and, in gen eral, to protect investors and the public interest.” To this end, the NASD adopted the Rules of Fair Practice, which govern the conduct of its members and associates of its members. Beyond the adoption of professional rules, the Exchange Act requires the NASD to enforce compliance with those rules and, more broadly, with the “provisions of [the Exchange Act], the rules and regulations thereunder, [and] the rules of the Municipal Securities Regulation Board.” As mandated by the Exchange Act, the NASD has implemented a “fair procedure for the disciplining of members and persons associated with members” suspected of violating the act’s legal or ethical precepts. The Rules of Fair Practice, together with a Code of Procedure, set forth the disciplinary framework within which complaints are handled and members are disciplined. The Exchange Act also requires the NASD’s rules to provide for the imposition of sanctions when violations are found. NASD sanctions may include, “expulsion, suspension, limitation of activities, functions, and operations, fine, censure, being suspended or barred from being associated with a member, or any other fitting sanction.’’ Through its sanctioning authority, the NASD has been “delegated governmental power ... to enforce, at (its) own initiative, compliance by members of the [securities] industry with both the legal requirements laid down in the Exchange Act and ethical standards going beyond those requirements.”" } ]

[ { "docid": "22925695", "title": "", "text": "for a writ of mandamus and; direct the district court to dismiss the case. I. BACKGROUND NASD is a securities association registered with the Securities and Exchange Commission pursuant to the provisions of the Maloney Act, 15 U.S.C. § 78o-3 (1976). The purpose of the voluntary association is to provide self-regulation of the over-the-counter securities market. The Maloney Act authorizes the association to promulgate rules designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest . 15 U.S.C. § 78o-3(b)(6) (1976); see United States v. National Association of Securities Dealers, Inc., 422 U.S. 694, 700-01 n.6, 95 S.Ct. 2427, 45 L.Ed.2d 486 (1975); Todd & Co. v. SEC, 557 F.2d 1008, 1012 (3d Cir. 1977). Furthermore, the statute gives the association the power to discipline its members who fail to conform to the standard of conduct established by the organization. 15 U.S.C. § 78o -3(h) (1976). “The Act also authorizes the SEC to exercise a significant oversight function over the rules and activities of the registered associations.” United States v. National Association of Securities Dealers, Inc., supra, 422 U.S. at 700-01 n.6, 95 S.Ct. at 2434. The NASD is headed by a Board of Governors. Its certificate of incorporation and by-laws divide the organization into thirteen geographical districts, each headed by a District Committee. The District Committee is required to appoint a District Business Conduct Committee, which assumes primary responsibility for enforcing the NASD rules. See II L. Loss, Securities Regulation 1365-69 (2d ed. 1961). In November 1977, NASD staff examiners began investigating First Jersey Securities, Inc., a New Jersey corporation. First Jersey, a registered member of NASD, has fourteen offices located in four states and Puerto Rico employing approximately 350 people. NASD claims that its investigators uncovered “a pattern of market" }, { "docid": "3747551", "title": "", "text": "substantive decision relating to Mathis’s Forms U-4 as well as the sanctions imposed against him. It determined that Mathis had “voluntarily provided false answers on his Form U4” regarding the tax liens and that the nondisclosure was material. Explaining that willfulness “means that the respondent ‘intentionally committ[ed] the act which constitutes the violation’ ” and “does not require that the person ‘also be aware that he is violating one of the Rules or Acts,’ ” the SEC concluded that Mathis had “willfully violated Membership Rule IM-1000-1 and Conduct Rule 2110.” The conclusion that Mathis acted willfully, by operation of §§ 3(a)(39)(F) and 15A(g)(2) of the Exchange Act, 15 U.S.C. §§ 78e(a)(39)(F) and 78o—3(g)(2), subjected Mathis to a “statutory disqualification,” or bar, from associating with any FINRA member firm—potentially a more severe sanction than a monetary penalty or temporary suspension. See Feins v. Am. Stock Exch., Inc., 81 F.3d 1215, 1218 n. 1 (2d Cir.1996) (“Statutory disqualifications include primarily prior felony convictions, willful violations of the federal securities laws, and other conduct that has, or could have, resulted in expulsion or suspension from a self-regulatory organization.”); Exchange Act § 15A(g)(2), 15 U.S.C. § 78o-3(g)(2) (“A registered securities association may, and in cases in which the Commission, by order, directs as necessary or appropriate in the public interest or for the protection of investors shall, deny membership to any registered broker or dealer, and bar from becoming associated with a member any person, who is subject to a statutory disqualification.”). Mathis timely filed this petition to review and vacate the SEC’s order, insofar as it determined that he was subject to statutory disqualification. DISCUSSION 1. Jurisdiction and Standard of Review FINRA regulates member brokerage firms and exchange markets, subject to oversight by the SEC. Exchange Act §§ 15A, 15A(b)(6), 15 U.S.C. §§ 78o-3, 78o-3(b)(6). The Exchange Act requires FINRA to promulgate rules “to prevent fraudulent and manipulative acts and practices” and to discipline its members when they violate those rules. Exchange Act § 15A(b)(6), 15 U.S.C. § 78o-3(b)(6). On the petition of a disciplined party, any disciplinary action taken by FINRA is" }, { "docid": "22101791", "title": "", "text": "since Borak we have adhered to a stricter standard for the implication of private causes of action, and we follow that stricter standard today. . . . The ultimate question is one of congressional intent, not one of whether this Court thinks that it can improve upon the statutory scheme that Congress enacted into law. 442 U.S. at 578, 99 S.Ct. at 2490. . Securities Exchange Act § 15A(b)(6), 15 U.S.C. § 78o-3(6) conditions registration of a securities association on a Commission determination that: (6) The rules of the association are designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest; and are not designed to permit unfair discrimination between customers, issuers, brokers, or dealers, to fix minimum profits, to impose any schedule or fix rates of commissions, allowances, discounts, or other fees to be charged by its members, or to regulate by virtue of any authority conferred by this chapter matters not related to the purposes of this chapter or the ádministration of the association. . See Lowelfels, Private Enforcement in the Over-the-Counter Securities Markets: Implied Liabilities Based on NASD Rules, 51 Cornell L.Q. 633, 635-36 (1966). . Cal.Code of Civil Procedure § 338 provides that certain actions must be brought within three years, including: 4. An action for relief on 'the ground of fraud or mistake. The cause of action in such case not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake. Cal.Code Civ.Proc. § 338(4) (West 1954). . Briefly, a margin account is a loan: when one buys stock on margin, one pays only a portion of the total cost of the security. The broker puts up the remainder of the money, charging the customer a" }, { "docid": "9063033", "title": "", "text": "W. Va. Univ. Hosps., Inc ., 660 F.3d 643, 648 (2d Cir. 2011) ; 72 Fed. Reg. 42,169, 42,170 (Aug. 1, 2007) ); see 15 U.S.C. § 78o(b)(8) (requiring broker-dealers to be FINRA members). See 15 U.S.C. § 78o-3(b)(6) (requiring FINRA to adopt rules designed, inter alia , to \"prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, ... and, in general, to protect investors and the public interest\"). 15 U.S.C. § 78s(b)(1)-(2) ; 17 C.F.R. § 200.30-3(a)(12) ; see Amicus Brief of Pub. Invests. Arb. Bar Assoc. (PIABA Br.), at 9-10 (outlining FINRA rulemaking process). FINRA Rule 140 (Applicability); FINRA Bylaws, art IV, § 1 (Membership); see, e.g. , W. Va. Univ. Hosps., Inc ., 660 F.3d at 648-49 ; Birkelbach v. S.E.C. , 751 F.3d 472, 475 n.2 (7th Cir. 2014) ; cf. Patten Sec. Corp. v. Diamond Greyhound & Genetics, Inc . (Patten ), 819 F.2d 400, 402 (3d Cir. 1987), abrogated on other grounds . See 72 Fed. Reg. at 42,170. FINRA's predecessor SRO-i.e. , the National Association of Securities Dealers, Inc. (NASD)-gained SEC approval of its revamped arbitration procedures decades ago. Grunwald , 400 F.3d at 1132 ; see Shearson/Am. Exp., Inc. v. McMahon , 482 U.S. 220, 234, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987). NASD exercised this oversight role in conjunction with the regulatory arm of the New York Stock Exchange until July 2007, at which point they merged to form FINRA. See 72 Fed. Reg. at 42,170. Jill I. Gross, The Customer's Nonwaivable Right to Choose Arbitration in the Securities Industry , 10 Brook. J. Corp. Fin. & Com. L. 383, 394 (2016) (detailing SEC's support for securities arbitration); see McMahon , 482 U.S. at 233, 107 S.Ct. 2332 (recognizing SEC's \"expansive power to ensure the adequacy of arbitration procedures employed\" by SROs). Fin. Indus. Reg. Auth. (FINRA), Final Report and Recommendations of the FINRA Dispute Resolution Task Force , at 1 (Dec. 7, 2015), http://www.finra.org/sites/default/files/Final-DR-task-force-report.pdf. FINRA, Reg. Notice 16-25, at 1 (July 2016); PIABA Br. at 12. These rules are set out in the FINRA" }, { "docid": "22096729", "title": "", "text": "securities laws. Colonial’s assertion that the complaint alleged a violation of federally granted rights is based upon provisions in the Se(curities Exchange Act dealing with registration of exchanges and dealers’ associations, and upon rules adopted pursuant to the statute by the NYSE and the NASD. Section 6(b) of the Securities Exchange Act provides: “No registration shall be granted or remain in force unless the rules of the exchange include provision for the expulsion, suspension, or disciplining of a member for conduct or proceeding inconsistent with just and equitable principles of trade, and declare that the willful violation of any provisions of this chapter or any rule or regulation thereunder shall be considered conduct or proceeding inconsistent with just and equitable principles of trade.” Section 15A(b) (8) forbids registration of a national securities association unless : “the rules of the association are designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to provide safeguards against unreasonable profits or unreasonable rates of commissions or other charges, and, in general, to protect investors and the public interest, * '* Under the NYSE Constitution, Art. XIV, § 6, disciplinary measures may be taken against a member found- guilty “of conduct or proceeding inconsistent with just and equitable principles of trade”; the NASD By-Laws, Art. I, § 2(a), and Rules of Fair Practice, Art. III, § 1, prohibit membership by persons disciplined on this account and require members to “observe high standards of commercial hon- or and just and equitable principles of trade.” The complaint alleged simply that Bache’s dealings were not consistent with such principles without elaborating how, save insofar as this can be gleaned from the charges of breach of contract and of failure to use due care to protect its customer’s interests. Colonial relies largely on Baird v. Franklin, 141 F.2d 238 (2 Cir.), cert. denied, 323 U.S. 737, 65 S.Ct. 38, 89 L.Ed. 591 (1944), in which this court recognized that culpable failure by a stock exchange to enforce rules adopted pursuant to § 6(b) of the Securities Exchange Act may give rise" }, { "docid": "16484036", "title": "", "text": "id. On review, the SEC is authorized to affirm, cancel, reduce or require remission of the NASD’s sanction. See 15 U.S.C. § 78s(e). But no provision is made for the SEC, on review of an association’s disciplinary order, to increase the sanction. Following enactment of the Maloney Act, only the NASD, which is a private, nonprofit corporation organized under the laws of Delaware, has registered as a national securities association. See 6 Louis Loss & Joel Selig-man, Securities Regulation 2794-95 (3d ed.1990). In furtherance of its statutorily mandated role, the NASD adopted Rules of Fair Practice implementing its prescription that NASD members “observe high standards of commercial honor and just and equitable principles of trade.” NASD Rules of Fair Practice Art. Ill § 1 (1992) (current version at Conduct Rule 2110, NASD Sec. Dealers Man. (CCH) ¶4111 (1996)). In addition to the Maloney Act’s authorization of the NASD to discipline its members, the Exchange Act and the Adviser’s Act explicitly authorize the SEC to discipline securities professionals directly. See 15 U.S.C. § 78o(b)(4) & (6); 15 U.S.C. § 80b-3(e) & (f). We have found no statutory, regulatory, or historical reference to support Jones’ argument that NASD discipline of its members was intended to preclude this disciplinary action by the SEC itself against a securities professional. On the contrary, the SEC has repeatedly interpreted the Maloney Act not to inhibit its independent inquiry into improper practices. See Shearson, Hammill & Co., Exchange Act Release No. 34-7743, 42 S.E.C. 811, 852 n. 88 (Nov. 12,1965); Lile & Co., Inc., Exchange Act Release No. 34-7644, 42 S.E.C. 664, 668 & n. 13 (July 9, 1965). Indeed, the scope of sanctions that the two institutions may impose varies significantly in that the NASD’s greatest sanction is merely to expel a member, revoke his registration, and bar him from association with NASD members. See Lile & Co., 42 S.E.C. at 668 n. 12, 6 Loss & Seligman, supra, at 2824. As the SEC characterized the NASD’s function in Lile & Co.: The major issues in NASD disciplinary proceedings are whether a member or a registered" }, { "docid": "3812514", "title": "", "text": "of action and hence failed to state a claim. The court also held that summary judgment was proper on the Regulation T claims because USU was in pari delicto. On the pendent claims, the court, in dismissing, noted the pendency of state court actions involving those claims. No questions are raised on these appeals regarding the dismissals of the pendent claims. The NASD, NYSE, and AMEX Rules. Article III, § 1, of the NASD Rules of Fair Practice requires a member to “observe high standards of commercial honor and just and equitable principles of trade.” Section 2 of the same. Article requires a member in recommending the purchase of a security to a customer to have reasonable grounds for believing that the security is suitable for the particular customer. This proscription is often called the “Suitability Rule.” NYSE Rule 405, called the Know-Your-Customer Rule, and the similar AMEX Rule 411 require that a member use \"due diligence to learn the essential facts relative to every customer, order” or account. The Securities Exchange Act of 1934 requires the registration of national securities associations and exchanges. The rules of these self-regulatory bodies must be approved by the Securities and Exchange Commission, • SEC. See 15 U.S.C. § 78o -3(b) and § 78f(b). The areas and concerns which the rules must cover are statutorily imposed. Ibid. SEC must approve any changes in the rules. 15 U.S.C. § 78s(b). SEC can “abrogate, add to and delete from” any of the self-regulatory rules in order to further the purposes' of the Act. 15 U.S.C. § 78s(c). Brokers who are not members of NASD have similar rules imposed on them by SEC regulation. For example, forms of NASD’s Rules of Fair Practice, Art. Ill, §§ 1 and 2 which are involved in these appeals, are imposed on non-members by 17 C.F.R. §§ 240.15bl0-2 and 240.15bl0-3. Colonial Realty Corporation v. Bache & Co., 2 Cir., 358 F.2d 178, cert. denied 385 U.S. 817, 87 S.Ct. 40, 17 L.Ed.2d 56, rejected an implied cause of private action for violation of Art. Ill, § 1, of the NASD rules." }, { "docid": "13009226", "title": "", "text": "requirements, the SEC has broad sanctioning power. The SEC can suspend or revoke the registration of the self-regulatory organization, or censure or restrict the activities, functions, and operations of the organization, a member, or an associate. Merrill Lynch, 616 F.2d at 1367. The SEC may remove from office or censure any officer or director of a self-regulatory organization if it finds she has wilfully violated the rules or abused her position. 15 U.S.C. § 78s(g)(2). Finally, the SEC may bring an action to enjoin any activity by the organization that violates the Exchange Act or rules promulgated thereunder. 15 U.S.C. § 78u(d). See Merrill Lynch, 616 F.2d at 1367. The Maloney Act specifies certain procedural safeguards for the self-regulatory organization’s disciplinary process. The organization must “bring specific charges, notify such member or person of, and give him an opportunity to defend against, such charges, and keep a record.” 15 U.S.C. § 78o -3(h)(1). Any sanction imposed must be supported by a statement of the Act which constituted the violation, the specific provision or rule violated, the sanction imposed, and the reasons therefor. Id. The SEC closely scrutinizes the disciplinary process and must be satisfied the rules provide a fair procedure for disciplinary hearings. 15 U.S.C. §§ 78o-3(b)(8), 78s(b)(l), (2). In Merrill Lynch, we discussed how the NASD has complied with these requirements regarding its disciplinary process: In response to these statutory guidelines, the NASD has established detailed rules for the handling of. disciplinary matters concerning its members. Upon initiation of a complaint against an NASD member, either by a member of the public or the association itself, a hearing is held before one of thirteen District Business Conduct Committees. NASD Code of . Procedure for Handling Trade Practice Complaints, NASD Manual §§ 3003, 3004. The written decision of the local committee is then reviewed by the National Business Conduct Committee of the NASD. NASD Manual § 3014 (Explanation by the Board of Governors). The National Committee may then vote for further review by the Board of Governors of the NASD, or such review may be instigated on the motion of" }, { "docid": "189179", "title": "", "text": "characterizes as “the full realization of the self-regulation contemplated by the statutory scheme!’ .We disagree. The Exchange Act does delegate substantial enforcement authority to self-regulatory organizations like the NASD, but the private enforcement mechanism advocated by Lang would go well beyond the system of cooperative regulation envisioned by Congress. Our refusal to recognize a private enforcement mechanism does not detract from the disciplinary goals of deterrence and investor protection. In the instant case, French has been barred from associating with any NASD member; and, as he has been removed from the securities industry, he poses no future threat to investors, regardless of whether Lang ever receives restitution. Moreover, alternative means — including, most commonly, private civil actions for securities law violations — exist for ensuring that members of the securities industries are unable to profit from their own misconduct. And, in cases deemed by the agency to implicate the public’s interest to such an extent as to warrant the procedure, the SEC could apply, pursuant to section 21(e)(1) of the Exchange Act, for an order of the district court commanding payment of the restitution previously ordered by the SEC. We know of nothing that would have prevented the SEC from petitioning the district court for enforcement of the restitution “ordered” by the agency; yet, try as we may, we cannot discern standing for Lang to do so. III CONCLUSION For the foregoing reasons, the decision of the district court is AFFIRMED. . 1997 NASD Manual: Conduct Rules (CCH) ¶ 4111 (currently designated as Rule 2110). . Id. ¶ 4141 (currently designated as Rule 2120). . See Exchange Act § 25(a)(1), 15 U.S.C. § 78y(a)(1) (1994). . Melton v. Teachers Ins. & Annuity Ass'n of America, 114 F.3d 557, 559 (5th Cir.1997). . Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 363 (5th Cir.1995) (citing Schuster v. Martin, 861 F.2d 1369, 1371 (5th Cir.1988); Degan v. Ford Motor Co., 869 F.2d 889, 892 (5th Cir.1989)). . Exchange Act, § 15A(b)(6), 15 U.S.C. § 78o-3(b)(6) (1994). . Exchange Act, § 15A(b)(7), 15 U.S.C. § 78o-3(b)(7) (1994). . Exchange Act, § 15A(b)(8), 15" }, { "docid": "22219361", "title": "", "text": "judgment was denied, Gross v. National Assn. of Securities Dealers, Inc., 419 U. S. 843 (1974). Subsequent to the filing of the United States’ complaint some 50 private suits purporting to be class actions under Fed. Rule Civ. Proc. 23 were filed in various District Courts around the country. These cases were transferred to the United States District Court for the District of Columbia by the Judicial Panel on Multidistrict Litigation, In re Mutual Fund Sales Antitrust Litigation, Civil Action No. Misc. 103-73. See 374 F. Supp., at 97 n. 4. The District Court deferred determination of whether the actions could be maintained as class actions under Rule 23 and additionally postponed discovery and other activity pending disposition of the motion to dismiss in this case. 374 F. Supp., at 114. The NASD is registered under § 15A of the Securities Exchange Act of 1934, 15 U. S. C. § 78o-3, the so-called Maloney Act of 1938. The Maloney Act supplements the Securities and Exchange Commission’s regulation of the over-the-counter markets by providing a system of cooperative self-regulation through voluntary associations of brokers and dealers. The Act provides that associations may register with the Commission pursuant to specified terms and conditions, and authorizes them to promulgate rules designed to prevent fraudulent and manipulative practices; to promote equitable principles of trade; to safeguard against unreasonable profits and charges; and generally to protect investors and the public interest. § 78o-3 (b) (8). The Act also authorizes the SEC to exercise a significant oversight function over the rules and activities of the registered associations. See, e. g., §§ 78o-3 (b), (e), (h), (j), and (k). The NASD is presently the only association registered under this Act. The mutual funds named as defendants in this action are Massachusetts Investors Growth Stock Fund, Inc., Fidelity Fund, Inc., and Wellington Fund, Inc. The defendant underwriters include the Crosby Corp., Vance, Sanders & Co., and the Wellington Management Co. Named as defendant broker-dealers are the following: Merrill Lynch, Pierce, Fenner & Smith, Inc., Bache & Co., Inc., Reynolds Securities Corp., E. I. duPont, Glore Forgan, Inc., E." }, { "docid": "11546890", "title": "", "text": "emphasis in determining whether private rights of action should be implied shifted from an inquiry whether a statute was for the benefit of a special class, of which the claimant was a member, to an inquiry focusing on the intent of Congress in enacting the statute under review. See Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). This court is persuaded by the Ninth Circuit decision in Jablon v. Dean Witter & Co., supra. In Jablon, the court noted that section 6(b) of the Securities Exchange Act, 15 U.S.C. § 78f(b), requires exchanges to adopt rules promoting “just and equitable principles of trade” but found no Congressional intent to provide a private action for violation of stock exchange rules in section 6(b). Similarly, with respect to the NASD rules, promulgated under section 15A(b)(6) of the Securities Exchange Act, 15 U.S.C. § 78o-3(6), there was no indication that Congress intended to create a private action. The court further noted that sections 9(e), 16(b), and 18 of the Securities Exchange Act explicitly provide private rights of action. Quoting Touche Ross, supra, the court observed “when Congress wished to provide a private damage remedy, it knew how to do so and did so expressly.” See also, Scharman v. E.F. Hutton & Company, Inc., supra. Furthermore, public policy concerns militate against implying private rights of action under the NYSE and NASD rules. The likely outcome of permitting civil damage actions for violations of such rules would be to discourage the stock exchange and the dealers association from promulgating rules for the protection of the investing public, an undesirable result. I note that Count III and Count V of plaintiff’s complaint state claims for violations of rule 10b-5 arising out of violations of the NASD rules and of the NYSE rules, respectively. No other allegations are made to support the 10b-5 violation other than the violation of these rules. Thus, Counts III and V do no more than state claims for violations of the rules themselves. Accordingly, summary judgment is granted as to Counts II, III, IV, and V of" }, { "docid": "16484035", "title": "", "text": "SEC bureaucracy to enforce the regulation of “financial responsibilities, professional conduct, and technical proficiency,” in 1938 Congress elected to expand regulation through the enactment of the Maloney Act, 15 U.S.C. § 78o-3, which mandates industry self-regulation through the creation of registered national securities associations. S.Rep. No. 75-1455, at 3 — 4; H.R.Rep. No. 75-2307, at 4-5. The intent was to establish a “cooperative regulation” where such associations would regulate themselves under the supervision of the SEC. Id. Under the Maloney Act, which amended the Exchange Act, registered securities associations are authorized to adopt rules which the SEC must, with limited exceptions, approve prior to their implementation and which the SEC may abrogate or amend as it deems in the public interest, consistent with the requirements of the Exchange Act. See 15 U.S.C. § 78s. Moreover, such associations must notify the SEC of all final orders disciplining association members. See 15 U.S.C. § 78s(d). A disciplined member may appeal to the SEC, or the SEC may, on its own motion, review final association disciplinary orders. See id. On review, the SEC is authorized to affirm, cancel, reduce or require remission of the NASD’s sanction. See 15 U.S.C. § 78s(e). But no provision is made for the SEC, on review of an association’s disciplinary order, to increase the sanction. Following enactment of the Maloney Act, only the NASD, which is a private, nonprofit corporation organized under the laws of Delaware, has registered as a national securities association. See 6 Louis Loss & Joel Selig-man, Securities Regulation 2794-95 (3d ed.1990). In furtherance of its statutorily mandated role, the NASD adopted Rules of Fair Practice implementing its prescription that NASD members “observe high standards of commercial honor and just and equitable principles of trade.” NASD Rules of Fair Practice Art. Ill § 1 (1992) (current version at Conduct Rule 2110, NASD Sec. Dealers Man. (CCH) ¶4111 (1996)). In addition to the Maloney Act’s authorization of the NASD to discipline its members, the Exchange Act and the Adviser’s Act explicitly authorize the SEC to discipline securities professionals directly. See 15 U.S.C. § 78o(b)(4) & (6);" }, { "docid": "6179339", "title": "", "text": "of Arbitration Procedure in 1968, when the rules of such organizations did not require the SEC’s approval. Until the 1975 amendments to §§ 15A and 19(b)(1) of the Securities Exchange Act, 15 U.S.C. §§ 78o-3, 78s(b)(l), changes in the NASD’s rules became effective unless the SEC objected. The NASD did not have to submit explanations of its rules, and the SEC did not explain why it let them go into force. So there is no paper trail that might assist in interpretation. The Arbitration Act tells courts to treat arbitration agreements the same as other contracts. 9 U.S.C. § 2. No contract, no arbitration. AT & T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986). Gilmer did not establish a grand presumption in favor of arbitration; it interpreted and enforced the texts on which the parties had agreed. The NYSE’s Rule 347 and the NASD’s Code of Arbitration Procedure are dissimilar. Bereft of interpretive assistance, we conclude that § 1 of the NASD’s Code does not authorize, and § 8 therefore does not require, the arbitration of an employment dispute between a member of the NASD and one of the member’s registered representatives. The judgment is reversed, and the case is remanded for adjudication on the merits. ON PETITION FOR REHEARING June 7, 1993. PER CURIAM. Our opinion holds that the rules of the National Association of Securities Dealers do not provide for arbitration of employment disputes. Although we acknowledged that the language of the NASD’s rules could be stretched to cover such disputes, we concluded that this was not the most natural reading and added: “[Njeither the SEC nor the NASD has published an interpretation of this language. The NASD adopted its Code of Arbitration Procedure in 1968, when the rules of such organizations did not require the SEC’s approval. Until the 1975 amendments to §§ 15A and 19(b)(1) of the Securities Exchange Act, 15 U.S.C. §§ 78o-8, 78s(b)(l), changes in the NASD’s rules became effective unless the SEC objected. The NASD did not have to submit explanations of its rules, and" }, { "docid": "189168", "title": "", "text": "the action taken by the NASD. French did not appeal the SEC order to either the Fifth or D.C. Circuit Court of Appeals, as authorized under the Exchange Act. In November 1996, Lang brought an action in district court seeking judicial enforcement of the restitution facet of the disciplinary action taken by the NASD and affirmed by the SEC. Specifically, Langs complaint prayed for a “judgment in his favor enforcing the orders of the NASD and the SEC and ordering [French] to pay [Lang the amount mandated by the NASD pursuant to its restitution order].” Following French’s failure to respond to Lang’s Request for Admissions, Lang filed a motion for summary judgment. The district court denied the motion, holding that it lacked jurisdiction to enforce SEC orders affirming NASD disciplinary actions. Armed with the court’s ruling, French filed a motion to dismiss, which the court treated as a summary judgment motion and granted. Lang timely appealed. II ANALYSIS A. Standard of Review We review grants of summary judgment de novo, applying the same standards as the district court. When, however, “this Court finds ‘an adequate, independent basis’ for the imposition of summary judgment, the district court’s judgment may be affirmed ‘regardless of the correctness of the district court’s rulings.’ ” B. APPLICABLE Law Lang’s claim raises novel issues on appeal, the resolution of which must begin with an understanding of the NASD disciplinary process and federal regulation of the over-the-counter (“OTC”) securities markets. The NASD, a private nonprofit corporation organized under the laws of Delaware, is registered with the SEC as a national securities association. As a prerequisite to its registration under the Exchange Act, the NASD was required to promulgate association rules “designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade ... and, in gen eral, to protect investors and the public interest.” To this end, the NASD adopted the Rules of Fair Practice, which govern the conduct of its members and associates of its members. Beyond the adoption of professional rules, the Exchange Act requires the NASD to enforce compliance" }, { "docid": "17925551", "title": "", "text": "OPINION AND ORDER LEISURE, District Judge. Plaintiff Susan Desiderio claims that a provision in Form U-4, Uniform Application for Securities Industry Registration or Transfer (“Form U-4”), that requires arbitration of disputes between securities brokers and their firms violates her constitutional and statutory rights under U.S. CONST, amend. III, V, and VII; U.S. CONST, art. III; Title 42, United States Code (“U.S.C.”), §§ 2000a, et seq. (“Title VIP); and 2 U.S.C. §§ 601, et seq. Plaintiff seeks a declaratory judgment against defendant National Association of Securities Dealers, Inc., (“NASD”); the NASD requires securities firms to file Form U-4 upon employing registered securities industry representatives or other securities professionals. Plaintiff also seeks a mandatory injunction invalidating the predispute arbitration provision in Form U-4 (Count I). Furthermore, plaintiff claims that the NASD is liable for tortious interference with contract (Count II) and negligent infliction of emotional distress (Count IV). Finally, plaintiff alleges that defendant Securities and Exchange Commission (“SEC”) arbitrarily and capriciously and in violation of Chapter 15 of the Securities Exchange Act of 1934 (the “Exchange Act”), 15 U.S.C. §§ 78o, et seq., has allowed the NASD to require registered representatives to submit employment disputes to arbitration as a condition of employment. Defendants now move for judgment on the pleadings on all claims, pursuant Rules 12(b)(6) and 12(b)(1) of the Federal Rules of Civil Procedure. For the reasons stated herein, the Court grants defendants’ motions. BACKGROUND The NASD is a private not-for-profit corporation organized under the laws of Delaware, and is .a self-regulatory organization registered with the SEC as a national securities association. Under Section 25 of the Exchange Act, the NASD is required to regulate the over-the-counter securities market, securities firms, and their registered representatives who buy and sell over-the-counter securities. The SEC must approve all of the NASD’s rules and regulations, including those relating to arbitration and the registration of securities representatives. The NASD also is required to maintain employment records regarding its member securities firms and their registered representatives. Pursuant to its authority to establish standards for the uniform licensing and registration of securities professionals, the NASD has approved" }, { "docid": "3369086", "title": "", "text": "has worked well, and the Committee believes it should be preserved and strengthened. S.Rep. No. 94-75, 94th Cong., 1st Sess. 23 (1975), U.S.Code Cong. & Admin.News, pp. 179, 201. The NASD is registered with the Securities and Exchange Commission (SEC) as a national securities association, pursuant to statutory authorization. 15 U.S.C. § 78o -3. It is the only registered securities association under the Exchange Act, and has approximately 2,625 broker/dealer members. As a registered securities association, it has been “delegated governmental power in order to enforce, at [its] own initiative, compliance by members of the industry with both the legal requirements laid down in the Exchange Act and ethical standards going beyond those requirements.” S.Rep. No. 94-75, 94th Cong., 1st Sess. 23 (1975), U.S.Code Cong. & Admin.News 1975, pp. 179, 201. This self-regulatory power -oí the NASD is subject to substantial oversight by the SEC. In particular, the SEC is authorized to suspend or revoke the registration of any national securities association that fails to enforce compliance with the Exchange Act, SEC regulations, or the rules of the self-regulatory organization. 15 U.S.C. § 78s(h)(l). Congress has specified certain procedural safeguards for NASD disciplinary hearings. The association is required to “bring specific charges, notify such member or person of, and give him an opportunity to defend against, such charges, and keep a record.” 15 U.S.C. § 78o-3(h)(1). Any disciplinary sanction must be supported by a statement setting forth the act or practice which constituted the violation, the specific provision violated, the sanction imposed, and the reasons supporting its imposition. Id. In addition, the procedure of NASD disciplinary hearings is subject to close scrutiny by the SEC. The SEC must be satisfied that NASD rules provide a “fair procedure” for disciplinary hearings. 15 U.S.C. §§ 78o-3 (b)(8), 78s(b)(l), (2). In response to these statutory guidelines, the NASD has established detailed rules for the handling of disciplinary matters concerning its members. Upon initiation of a complaint against an NASD member, either by a member of the public or the association itself, a hearing is held before one of thirteen District Business Conduct Committees." }, { "docid": "3798267", "title": "", "text": "6 L. Ed.2d 1141; United States v. Morgan, 118 F.Supp. 621 (S.D.N.Y.1953) [“By express statutory provision, Securities Exchange Act of 1934, Section 15A(n), the Rules of Fair Practice of the NASD are, when approved by the SEC, exempt from the application of the antitrust laws, if in conflict. This is not disputed.” Judge Medina’s opinion, p. 693] ; Silver v. New York Stock Exchange, 302 F.2d 714 (2 Cir., 1962), rev’d 373 U.S. 341, 83 S.Ct. 1246, 10 L.Ed.2d 389 (1962) [“In other provisions of the Securities Exchange Act, namely those sections governing over-the-counter brokers’ and dealers’ associations, 52 Stat. 1070 (1938), 15 U.S.C.A. § 78o-3, the draftsmen of our securities statutes provided an explicit exemption from the anti-trust laws. 15 U.S.C.A. § 78o-3(n).” Judge Waterman’s dissenting opinion, p. 722] ; Silver v. New York Stock Exchange, 196 F.Supp. 209 (S.D. N.Y.1961), [“Moreover, in the 1938 amendment Congress expressly provided that in the event of conflict between any provisions of the 1938 Act and any other provisions of law, the provisions of the 1938 Act should prevail. 15 U.S.C.A. § 78o-3(n). This, of course, includes the anti-trust laws.” Judge Bryan’s opinion, p. 220] ; See Loss on Security Regulations, Vol. II, Chapter 8C3 “The Maloney Act and the Anti-Trust Laws,” p. 1369. . 15 U.S.C. § 78o-3(b) An applicant association shall not be registered as a national securities association unless it appears to the Commission that— (8) the rules of the association are designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to provide safeguards against unreasonable profits or unreasonable rates of commissions or other charges, and, in general, to protect investors and the public interest, and to remove impediments to and perfect the mechanism of a free and open market; and are not designed to permit unfair discrimination between customers or issuers, or brokers or dealers, to fix minimum profits; to impose any schedule of prices, or to impose any schedule or fix minimum rates of commissions, allowances, discounts, or other charges." }, { "docid": "7284298", "title": "", "text": "a firm to register with the SEC, as well as with the exchanges on which they traded. 15 U.S.C. §§ 78o(a)(1), (b)(1), (b)(8) (1981). The SEC in 1982 also allowed each exchange to promulgate registration rules. Id. § 78o-3(g)(3)(B). Moreover, at that time, the SEC had the power to review and approve proposed NASD and NYSE registration and arbitration requirements, and compelled the exchanges to comply with their own rules. Id. §§ 78f (a)—(b), 78o-3 (a)—(b), 78s(b)—(c), 78s(g)(1). Finally, in 1993, the SEC codified its own regulations prohibiting brokers from trading unless they registered with an exchange. 17 C.F.R. § 240.15b7-1 (May 1, 1993). All this, according to Cremin, warrants a finding that the NASD and NYSE registration and. arbitration requirements can be “fairly attributed” to the SEC. We find that none of these provisions, alone or combined, adds up to state action. The plain fact is that when Cremin registered, no federal statute or SEC regulation required her to do so, to sign a U-4, or to arbitrate. 15 U.S.C. § 78o-3(g)(3)(B) (1981); see Association of Investment Brokers v. SEC, 676 F.2d 857, 861 (D.C.Cir.1982); Duffield v. Robertson, Stephens & Co., No. C-95-109, slip op. at 6, 8 (N.D.Cal. Aug. 6, 1996) (“[T]he state action analysis must focus on 1988, the year in which the plaintiff agreed to the arbitration clause at issue.”). In 1982, the SEC Act registration provision applied only to broker-dealer firms and individuals who were not associated with a firm. 15 U.S.C. § 78o(a)(1), (b)(8) (1981); see Investment Brokers, 676 F.2d at 859; Duffield, slip. op. at 7. Cremin registered, by contrast, as an individual associated with a firm, Merrill Lynch. And although the SEC permitted the exchanges to come up with their own registration and arbitration rules for associated individuals in 1982, the Commission did not require the exchanges to do so. 15 U.S.C. § 78o—3(g)(3)(B); Investment Brokers, 676 F.2d at 861. Indeed, the NASD imposed mandatory arbitration long before the SEC received the power to review exchange arbitration rules in 1975; the NYSE compulsory arbitration scheme was firmly in place by 1958. Duffield," }, { "docid": "3747552", "title": "", "text": "have, resulted in expulsion or suspension from a self-regulatory organization.”); Exchange Act § 15A(g)(2), 15 U.S.C. § 78o-3(g)(2) (“A registered securities association may, and in cases in which the Commission, by order, directs as necessary or appropriate in the public interest or for the protection of investors shall, deny membership to any registered broker or dealer, and bar from becoming associated with a member any person, who is subject to a statutory disqualification.”). Mathis timely filed this petition to review and vacate the SEC’s order, insofar as it determined that he was subject to statutory disqualification. DISCUSSION 1. Jurisdiction and Standard of Review FINRA regulates member brokerage firms and exchange markets, subject to oversight by the SEC. Exchange Act §§ 15A, 15A(b)(6), 15 U.S.C. §§ 78o-3, 78o-3(b)(6). The Exchange Act requires FINRA to promulgate rules “to prevent fraudulent and manipulative acts and practices” and to discipline its members when they violate those rules. Exchange Act § 15A(b)(6), 15 U.S.C. § 78o-3(b)(6). On the petition of a disciplined party, any disciplinary action taken by FINRA is reviewed by the SEC, which conducts a de novo review of the record and make its own findings as to whether the alleged conduct violated FINRA rules. See Exchange Act §§ 19(d)(2), 19(e)(1), 15 U.S.C. §§ 78s(d)(2), (e)(1); PAZ Sec., Inc. v. SEC, 494 F.3d 1059, 1064-65 (D.C.Cir.2007). The SEC’s order is subject to review by this Court. See, e.g., Heath v. SEC, 586 F.3d 122, 131 (2d Cir.2009). “[W]e will affirm the SEC’s findings of fact if supported by substantial evidence.” VanCook v. SEC, 653 F.3d 130, 137 (2d Cir.2011); see MFS Sec. Corp. v. SEC, 380 F.3d 611, 617 (2d Cir.2004); 15 U.S.C. §§ 78y(a)(4), 80a-42(a), and 80b-13(a); 15 U.S.C. § 77i (“The finding of the Commission as to the facts, if supported by evidence, shall be conclusive.”). Under the Administrative Procedure Act, we will set aside the SEC’s actions, findings, or conclusions of law only if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see D’Alessio v. SEC, 380 F.3d 112," }, { "docid": "22925694", "title": "", "text": "OPINION OF THE COURT ROSENN, Circuit Judge. We are presented with a petition for a writ of mandamus, urging us to direct the district court to dismiss a suit for want of subject matter jurisdiction. The suit was filed in the United States District Court for the District of New Jersey, by First Jersey Securities, Inc., and some of its officers and personnel (“First Jersey”), seeking to enjoin the National Association of Securities Dealers, Inc., (NASD) and George J. Bergen, vice president of NASD and District Director for NASD District 12, from proceeding with a disciplinary hearing. The complaint also sought monetary relief. First Jersey requested a preliminary injunction while NASD moved for dismissal of the suit. The district judge denied both motions and retained jurisdiction over the suit. NASD then filed this petition. We stayed discovery in the action pending final disposition of the matter in this court. Because the district court is without jurisdiction to entertain this action which has resulted in unwarranted interference with the administrative process, we will grant the petition for a writ of mandamus and; direct the district court to dismiss the case. I. BACKGROUND NASD is a securities association registered with the Securities and Exchange Commission pursuant to the provisions of the Maloney Act, 15 U.S.C. § 78o-3 (1976). The purpose of the voluntary association is to provide self-regulation of the over-the-counter securities market. The Maloney Act authorizes the association to promulgate rules designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest . 15 U.S.C. § 78o-3(b)(6) (1976); see United States v. National Association of Securities Dealers, Inc., 422 U.S. 694, 700-01 n.6, 95 S.Ct. 2427, 45 L.Ed.2d 486 (1975); Todd & Co. v. SEC, 557 F.2d 1008, 1012 (3d Cir. 1977). Furthermore, the" } ]

[ { "docid": "22657267", "title": "", "text": "a substantial showing of the denial of a constitutional right.” (Emphasis added.) A “substantial showing” does not entitle an applicant to a COA; it is a necessary and not a sufficient condition. Nothing in the text of § 2253(c)(2) prohibits a circuit justice or judge from imposing additional requirements, and one such additional requirement has been approved by this Court. See Slack v. McDaniel, 529 U. S. 473, 484 (2000) (holding that a habeas petitioner seeking to appeal a district court’s denial of habeas relief on procedural grounds must not only make a substantial showing of the denial of a constitutional right but also must demonstrate that jurists of reason would find it debatable whether the district court was correct in its procedural ruling). The Court today imposes another additional requirement: A circuit justice or judge must deny a COA, even when the habeas petitioner has made a substantial showing that his constitutional rights were violated, if all reasonable jurists would conclude that a substantive provision of the federal habeas statute bars relief. Ante, at 336. To give an example, suppose a state prisoner presents a constitutional claim that reasonable jurists might find debatable, but is unable to find any “clearly established” Supreme Court precedent in support of that claim (which was previously rejected on the merits in state-court proceedings). Under the Court’s view, a COA must be denied, even if the habeas petitioner satisfies the “substantial showing of the denial of a constitutional right” requirement of § 2263(c)(2), because all reasonable jurists would agree that habeas relief is impossible to obtain under § 2254(d). This approach is consonant with Slack, in accord with the COA’s purpose of preventing meritless ha-beas appeals, and compatible with the text of § 2253(c), which does not make the “substantial showing of the denial of a constitutional right” a sufficient condition for a COA. II In applying the Court’s COA standard to petitioner’s case, we must ask whether petitioner has made a substantial showing of a Batson violation and also whether reasonable jurists could debate petitioner’s ability to obtain habeas relief in light of" } ]

[ { "docid": "15137365", "title": "", "text": "unreasonable determination of the facts based on the evidence presented. Accordingly, the Court DENIES petitioner’s first ground for relief as meritless. D. Certificate of Appealability An appeal from the denial of a habeas corpus action may not proceed unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). To warrant a certificate of appealability, a petitioner must make a substantial showing that he was denied a constitutional right. 28 U.S.C. § 2253(c)(2); see also Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983); Lyons v. Ohio Adult Parole Authority, et al., 105 F.3d 1063 (6th Cir.1997). He need not demonstrate that he will prevail on the merits; he needs only to demonstrate that the issues he seeks to appeal are deserving of further proceedings or are reasonably debatable among jurists of reason. Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. 3383. “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy 28 U.S.C. § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). This analysis should also be applied when the Court has denied a claim on procedural grounds. Id. at 483, 120 S.Ct. 1595; see also Porterfield v. Bell, 258 F.3d 484, 486 (6th Cir.2001). When the Court dismisses a claim on procedural grounds, a certificate of appealability is warranted when petitioner demonstrates (1) that jurists of reason would find it debatable whether the petition states a valid claim and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595. This issue was central to petitioner’s trial and this Court’s resolution of the issue is central to this habeas proceeding. This claim not only is fact-intensive but also implicates numerous fundamental rights. That being so, the Court is more than satisfied that reasonable jurists could find its" }, { "docid": "11165303", "title": "", "text": "court’s decision without a COA. Miller-El, 537 U.S. at 335-36, 123 S.Ct. 1029; Lockett, 711 F.3d at 1249. The district court dismissed each of these claims on procedural grounds and refused to grant a COA for any of them. Although Mr. Frost does not explicitly seek a COA, we construe his filing of a notice of appeal as a request for a COA. See Fed. R.App. P. 22(b)(2) (“If no express request for a certificate is filed, the notice of appeal constitutes a request addressed to the judges of the court of appeals.”); see also United States v. Gordon, 172 F.3d 753, 753-54 (10th Cir.1999) (citing Fed. R.App. P. 22(b)(2)). 1. Standard for Granting COA Under AEDPA, we may not issue a COA unless “the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253; see also Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). When a district court dismisses a petition on procedural grounds “without reaching the prisoner’s underlying constitutional claim,” a COA cannot issue unless the petitioner shows both (1) “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right” and (2) “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595; accord Dulworth v. Jones, 496 F.3d 1133, 1137 (10th Cir.2007). Rather than addressing these two threshold re quirements in order, we may “resolve the issue whose answer is more apparent from the record and arguments.” Slack, 529 U.S. at 485, 120 S.Ct. 1595. 2. Legal Background a. Exhaustion and anticipatory procedural bar A federal court cannot grant a state prisoner’s habeas petition unless the petitioner has exhausted his claims in state court. See 28 U.S.C. § 2254(b)(1). Relevant here, a state prisoner must give state courts “one full opportunity to resolve any constitutional issues by invoking one complete round of the State’s established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct." }, { "docid": "15107164", "title": "", "text": "Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Johnny William Cooper, Jr., seeks to appeal the district court’s order denying his Fed. R. Civ. P. 60(d)(3) motion seeking relief from the district court’s order denying Cooper’s 28 U.S.C. § 2255 (2012) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the motion states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595. We have independently reviewed the record and conclude that Cooper has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED" }, { "docid": "22880481", "title": "", "text": "EDITH H. JONES, Circuit Judge: Bruce Wayne Houser, Texas prisoner # 460890, moves for a certificate of appeal-ability (COA) to appeal the dismissal of his 28 U.S.C. § 2254 petition for failure to exhaust administrative remedies and as procedurally barred. In that petition, Houser alleged due process violations in connection with prison disciplinary proceeding # 20020003898. Houser has demonstrated that reasonable jurists could debate whether the district court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000). However, he fails to establish that reasonable jurists could debate whether he has claimed a valid deprivation of his constitutional rights. See id. COA IS DENIED. The district court found that Houser failed to exhaust his state remedies because he had not filed his Step 1 grievance in a timely manner and, further, that he had failed to file a Step 2 grievance. Both of these findings are rendered questionable by the record, which indicates that Houser’s Step 1 grievance was received on the first working day beyond the fifteen-day period allotted for filing grievances and, per the Offender Grievance Operations Manual, was therefore timely. Also, contrary to the district court’s finding, the record contains a copy of Houser’s Step 2 grievance and the response issued by prison authorities. The district court’s determination of failure to exhaust is at best suspect. However, for a COA to issue, Houser must prove not only that reasonable jurists could debate whether the district court was correct in its procedural ruling, but also that reasonable jurists could find it debatable that the petition states a valid claim of the denial of a constitutional right. 28 U.S.C. § 2253(c); Slack, 529 at 484, 120 S.Ct. at 1603-04. This coequal portion of the appealability test “gives meaning to Congress’ requirement that a prisoner demonstrate substantial underlying claims.” Slack, id. Accordingly, we must consider whether “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 1040, 154 L.Ed.2d 931 (2003). Performing the" }, { "docid": "21868709", "title": "", "text": "that he had motioned to his pocket when he was in the store, the jury could also reasonably infer that the gun was physically available and accessible to him during the in-store robbery. In short, viewing all the testimony in the light most favorable to the prosecution, the court concludes that the Delaware Supreme Court did not unreasonably apply Jackson in finding sufficient evidence to sustain petitioner’s weapons conviction. Thus, this claim does not warrant habeas relief under § 2254(d)(1). Y. CERTIFICATE OF APPEALABILITY Finally, the court must decide whether to issue a certificate of appealability. See Third Circuit Local Appellate Rule 22.2. The court may issue a certificate of appeal-ability only when a petitioner makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This showing is satisfied when the petitioner demonstrates “that reasonable jurists would find the district court’s assessment of the denial of a constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Further, when a federal court denies a habeas petition on procedural grounds without reaching the underlying constitutional claim, the prisoner must demonstrate that jurists of reason would find it debatable: (1) whether the petition states a valid claim of the denial of a constitutional right; and (2) whether the court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595. For the reasons stated above, the court concludes that petitioner is not entitled to federal habeas relief for any of his claims. Reasonable jurists would not find these conclusions unreasonable. Consequently, petitioner has failed to make a substantial showing of the denial of a constitutional right, and a certificate of appealability will not be issued. VI. CONCLUSION For the foregoing reasons, petitioner’s application for habeas relief filed pursuant to 28 U.S.C. § 2254 will be denied. An appropriate order will be entered. ORDER For the reasons set forth in the memorandum opinion issued this date, IT IS HEREBY ORDERED that: 1. Petitioner Claude A. Jones’ application for a writ of habeas corpus pursuant to 28" }, { "docid": "23518656", "title": "", "text": "addressed Mr. Adams’ contention that pursuant to Houston v. Lack, his second state petition was “filed” when he placed the petition in the mail. Adopting this argument would toll the federal statute of limitations long enough to make Mr. Adams’ federal habeas petition timely. We granted a certificate of appealability, vacated the district court’s order, and remanded for a determination of this issue. On remand, the district court held Houston v. Lack did not apply in this case, and again found Mr. Adams’ federal petition untimely. We granted a certificate of ap-pealability on this issue, and appointed counsel for Mr. Adams for the purposes of this appeal. DISCUSSION Because the question presented here is a legal one, our review is de novo. See Rogers v. Gibson, 173 F.3d 1278, 1282 (10th Cir.1999), cert. denied, — U.S. —, 120 S.Ct. 944, 145 L.Ed.2d 820 (2000). As an initial matter, we must determine if we have jurisdiction over this appeal. Appellate review of the dismissal of a habeas petition is controlled by 28 U.S.C. § 2253, which requires the issuance of a certificate of appealability before an appeal can proceed in our court. See 28 U.S.C. § 2253(c)(1)(A). “A certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). As mentioned earlier, we granted a certificate of appealability on the issue of the timeliness of Mr. Adams’ federal petition. However, [w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a [certificate of appeal-ability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000). Therefore, the determination of whether a certificate of appealability should issue in this case must have “two components, one directed at" }, { "docid": "22976813", "title": "", "text": "and entered a final judgment, denying Dowthitt habeas relief on all claims, dismissing his case with prejudice, and denying Dowthitt’s request for a COA. After .the district court denied his Rule 59(e) motion, Dowthitt timely appealed to this court, requesting a COA and reversal of the district court’s judgment denying habeas relief. II. DISCUSSION Because Dowthitt’s petition for federal habeas relief was filed after April 24, 1997, this appeal is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 100 Stat. 1214. See Molo v. Johnson, 207 F.3d 773, 775 (5th Cir.2000) (“Petitioners whose convictions became final before the effective date of the AEDPA were given a grace period of one year to file their federal habeas petitions, rendering them timely if filed by April 24, 1997.”). Under AED-PA, a petitioner must first obtain a COA in order for an appellate court to review a district court’s denial of habeas relief. See 28 U.S.C. § 2253(c)(1)(A). 28 U.S.C. § 2253(c)(2) mandates that a COA will not issue unless the petitioner makes “a substantial showing of the denial of a constitutional right.” This standard “includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000) (internal quotations and citations omitted); see also Hill v. Johnson, 210 F.3d 481, 484 (5th Cir.2000). The formulation of the COA test is dependent upon whether the district court dismisses the petitioner’s claim on constitutional or procedural grounds. If the district court rejects the constitutional claims on the merits, the petitioner “must demonstrate that reasonable jurists' would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack, 120 S.Ct. at 1604. On the other hand, [w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason" }, { "docid": "1287410", "title": "", "text": "ORDER DENYING CERTIFICATE OF APPEALABILITY TIMOTHY M. TYMKOVICH, Circuit Judge. Jonathan Lee Roderick, a state prisoner appearing pro se, seeks a certificate of appealability (COA), see 28 U.S.C. § 2253(c), allowing him to appeal the order of the district court denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Because we determine Roderick has not established that “jurists of reason could conclude that the District Court’s dismissal on procedural grounds was debatable or incorrect,” Slack v. McDaniel, 529 U.S. 473, 485, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), we DENY a COA and DISMISS the appeal. I. Background Roderick was convicted in Wyoming state court of felony murder, aggravated burglary, and unauthorized use of a vehicle. The Wyoming Supreme Court affirmed Roderick’s conviction in 1993, except as to the judgment and sentence, which it modified by vacating a fifteen to twenty-five year term for aggravated burglary. See Roderick v. State, 858 P.2d 538, 541 (Wyo.1993). Roderick then filed a state court petition for post-conviction relief in 2007. That petition was denied by the Wyoming state courts. Finally, in 2008 Roderick filed a Petition for Writ of Review, which the Wyoming Supreme Court also denied. Roderick filed the instant § 2254 petition in federal district court in July 2008. The district court concluded the petition was time-barred and dismissed the case. See 28 U.S.C. § 2244(d). This appeal followed. II. Discussion Where a district court dismisses a § 2254 petition on procedural grounds, a petitioner seeking a COA must establish that reasonable jurists would find it debat able both whether the district court was correct in its procedural ruling, and whether the petition states a valid claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595; Fleming v. Evans, 481 F.3d 1249, 1254-56 (10th Cir.2007). If a procedural bar is present and the district court correctly invokes it to dispose of the case, “a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed" }, { "docid": "18061434", "title": "", "text": "§ 2254 habeas corpus petition, however, the Antiterrorism and Effective Death Penalty Act of 1996 (\"AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214, \"governs the conditions of [Jones’s] appeal, and so he was required to seek a COA to obtain appellate review of the dismissal of his habeas petition.” Slack v. McDaniel, 529 U.S. 473, 482, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). We treat Jones's notice of appeal, filed on September 24, 2013, as an application for a COA. See Fed. R.App. P. 22(b); Slack, 529 U.S. at 483, 120 S.Ct. 1595. When the district court denies a habeas corpus petition on procedural grounds and fails to reach the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows \"that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595. Reviewing Jones's motion, we conclude that he has satisfied AEDPA's requirements for a COA by making “a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and by showing that jurists of reason could debate whether the district court properly dismissed Jones’s Rule 60(b) motion as a disguised (and unauthorized) second or successive 28 U.S.C. § 2254 habeas corpus petition. We grant Jones a COA, though this of course is not the same as authorizing him to file a second or successive 28 U.S.C. § 2254 habeas corpus petition based on the standard in 28 U.S.C. § 2244(b). . An Arizona execution warrant expires 24 hours from the date it sets for the execution. Ariz. R.Crim. P. 31.17(c)(3). Jones’s warrant sets his execution for October 23, 2013, and therefore expires the next day. Because it would take far longer than that to reopen and adjudicate the claims Jones now wishes to pursue, the State would be forced to obtain a new warrant if Jones is allowed to proceed but then loses. Thus, the likely need to" }, { "docid": "23442042", "title": "", "text": "court’s decision to deny his “Motion for Leave to File a Second Amended Petition for Writ of Habeas Corpus.” As explained below, we treat Murray’s uncertified claim as a motion to expand the certificate of appealability (“COA”) that we previously granted. Under Federal Rule of Appellate Procedure 22(b)(2), a notice of appeal constitutes an application for a COA. See Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Thus, where “a motions panel grants a COA in part and denies a COA in part,” “[uncerti-fied issues raised and designated in [the manner prescribed by Ninth Circuit Rule 22-1] will be construed as a motion to expand the COA and will be addressed by [us] to such extent as [we] deem[ ] appropriate.” 9th Cir. R. 22-1(d)-(e). A COA may issue in federal habe-as review of state proceedings “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Wilson v. Belleque, 554 F.3d 816, 825-26 (9th Cir.2009). This is not an exacting standard. Id. at 826. We will “not decline the application for a COA merely because [we] believe[ ] the applicant will not [ultimately] demonstrate an entitlement to relief.” Miller-El, 537 U.S. at 337, 123 S.Ct. 1029. Rather, we will issue a COA “if jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.” Wilson, 554 F.3d at 826. If, however, the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when ... jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595 (emphasis added). “Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not[, however,] conclude" }, { "docid": "2875794", "title": "", "text": "action may not proceed unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). To warrant a certificate of appealability, a petitioner must make a substantial showing that he was denied a constitutional right. 28 U.S.C. § 2253(c)(2); see also Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983); Lyons v. Ohio Adult Parole Authority, 105 F.3d 1063, 1073 (6th Cir.1997). He need not demonstrate that he will prevail on the merits; he needs only to demonstrate that the issues he seeks to appeal are deserving of further proceedings or are reasonably debatable among jurists of reason. Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. 3383. “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy 28 U.S.C. § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the con stitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). This analysis should also be applied when the Court has denied a claim on procedural grounds. Id. at 483, 120 S.Ct. 1595; see also Porterfield v. Bell, 258 F.3d 484, 486 (6th Cir.2001). When the Court dismisses a claim on procedural grounds, a certifícate of appealability is warranted when petitioner demonstrates (1) that jurists of reason would find it debatable whether the petition states a valid claim and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595. Because the Court agrees with and adopts the Magistrate Judge’s decision to sua sponte recognize and enforce the default of Petitioner’s first ground for relief, and because the Court views as a “close call” whether the dismissal of prospective juror Wells was proper under Wainwright v. Witt, 469 U.S. at 424,105 S.Ct. 844, even though the Court was prevented by the procedural default from addressing the merits of the claim, the Court is satisfied that reasonable jurists could find debatable" }, { "docid": "23657085", "title": "", "text": "in both habeas corpus proceedings and other contexts”). We begin our discussion by setting forth the limited circumstance under which a court may issue a COA. The right to appeal is governed by the COA requirements set forth in 28 U.S.C. § 2253(c): (c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from— (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or (B) the final order in a proceeding under section 2255. (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 28 U.S.C. § 2253(c). Under this limited provision, if a district court denies a habeas petition on procedural grounds without reaching the petitioner’s underlying constitutional claims, a COA should issue only if the petitioner shows “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 1601, 146 L.Ed.2d 542 (2000). “[B]oth showings [must] be made before the court of appeals may entertain the appeal.” Id. at 485, 120 S.Ct. at 1604. If the procedural bar is obvious and the district court correctly invoked it to dispose of the case, “a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further.” Id. at 484, 120 S.Ct. at 1604. The court may first resolve the issue whose answer is more apparent from the record and the arguments. Id. at 485, 120 S.Ct. at 1604. “The recognition that the court will not pass upon a constitutional question" }, { "docid": "11812487", "title": "", "text": "ORDER DENYING CERTIFICATE OF APPEALABILITY PAUL KELLY, JR., Circuit Judge. Petitioner Daniel Dill, a state prisoner proceeding pro se, seeks a certificate of appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2254 habe-as petition. We deny his request for a COA and dismiss the appeal. On October 29, 2003, Mr. Dill was convicted by a jury in Oklahoma state court on five felony counts. The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed his conviction on January 4, 2005. Mr. Dill did not seek a writ of certiorari with the United States Supreme Court. On March 23, 2006, he applied for post-conviction relief in state district court. See Moore v. Gibson, 27 P.3d 483, 484 n. 1 (Okla.Crim.App.2001) (explaining that “an application for post-conviction relief in a non-capital case is always deemed to be timely filed” because there are no applicable time limitations). The motion was denied and that decision was affirmed by the OCCA on February 21, 2007. On April 4, 2007, Mr. Dill submitted his federal habeas petition to prison officials for mailing, and it was filed on April 16, 2007. The district court determined that the petition was time-barred under the one-year limitations period in 28 U.S.C. § 2244(d), and that equitable tolling did not apply. As the district court dismissed the habeas petition on procedural grounds, we may issue a COA only if Mr. Dill makes a substantial showing that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see 28 U.S.C. § 2253(c)(2). ■ [1] The one-year limitations period for filing a federal habeas petition runs from the “date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). A conviction is “final” (and the one-year limitations period begins to" }, { "docid": "14010033", "title": "", "text": "denied. II To receive a COA, Cardenas must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). When a district court rejects a claim on the merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). In capital cases, doubts about whether the petitioner has met the standard must be resolved in favor of the petitioner. Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.2000). When a petition is dismissed on procedural grounds, the petitioner must show that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595 (emphasis added). At the COA stage, a court should “limit its examination to a threshold inquiry into the underlying merit of his claims.” Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citing Slack, 529 U.S. at 481, 120 S.Ct. 1595). We do not fully consider “the factual or legal bases adduced in support of the claims,” and a petitioner need not show that an appeal will succeed in order to be entitled to a COA. Id. at 336-37, 123 S.Ct. 1029. “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 120 S.Ct. 1595. The district court should evaluate the habeas petition to see if the state court’s determination “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). A decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless it “resulted in a decision that was based on an unreasonable determination of the facts in light" }, { "docid": "22217607", "title": "", "text": "psychiatric reports, constituted evidence with sufficient reliability to support the Board’s denial of parole. Therefore we cannot conclude that the state court’s decision upholding this denial was “contrary to, or involved an unreasonable application of, clearly established federal law” or “was based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d). II. Rosas also contends that he is entitled to habeas relief because his guilty plea was not knowing and voluntary, thereby denying him due process and effective assistance of counsel at sentencing. The district court dismissed this claim as time-barred and later denied Rosas’s request for a certificate of appealability on the issue. Unlike Rosas’s claim for denial of parole, the challenge to his underlying conviction “arises out of process issued by a State court,” and therefore Rosas must obtain a certificate of appealability in order for us to entertain his appeal. 28 U.S.C. § 2253(c)(1)(A). A certificate of appealability should issue only if the petitioner has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Where, as here, the district court dismisses the petition on procedural grounds, a certificate of appealability should issue only if the petitioner can show: (1) “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling”; and (2) “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Rosas has failed to meet this standard with respect to the district court’s resolution of the statute of limitations issue. The statute of limitations on habeas corpus petitions filed by state prisoners in federal court is one year. 28 U.S.C. § 2244(d)(1). State prisoners like Rosas, whose convictions became final prior to the enactment of this one-year statute of limitations, had until April 24,1997 to file their petitions. Patterson v. Stewart, 251 F.3d 1243, 1245-46 (9th Cir.2001). Rosas did not file a petition challenging his sentence until 2000. Moreover, nothing in the record suggests" }, { "docid": "22571850", "title": "", "text": "Allen asserted these as separate claims for relief in his second habeas petition and supporting memorandum of points and authorities filed in the district court. In addition, Allen specifically relied upon Lackey in the district court. Justice Stevens’ concurrence in Lackey makes no reference to age or infirmity, but only to tenure. Because each claim now occupies a distinct procedural sphere, we analyze them independently from that perspective as well. II. CERTIFICATE OF APPEALABILITY ON ALLEN’S AGE AND PHYSICAL INFIRMITY CLAIM Having been denied a certificate of appealability on his age and physical infirmity claim by the district court, Allen asks us to certify this claim, as he must secure a certificate of appealability before he can proceed with the merits of his claims. See 28 U.S.C. § 2253(c)(1); 9th Cir. R. 22-1; see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). A petitioner must make “a substantial showing of the denial of a constitutional right” to warrant a certificate of appeal-ability. 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at 484, 120 S.Ct. 1595; see also Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). To meet this “threshold inquiry,” Slack, 529 U.S. at 482, 120 S.Ct. 1595, the petitioner “ ‘must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.’ ” Lam-bright, 220 F.3d at 1025(alteration and emphasis in original) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (internal quotation marks omitted)). Even if a question is well settled in our circuit, a constitutional claim is debatable if another circuit has issued a conflicting ruling. See id. at 1025-26. “[T]he showing a petitioner must make to be heard on appeal is less" }, { "docid": "7870289", "title": "", "text": "(Michie 2000) (vesting exclusive jurisdiction in the Supreme Court of Virginia of petitions for writs of habeas corpus by petitioners held under a sentence of death), and was denied relief. Thereafter, he filed a petition pursuant to 28 U.S.C.A. § 2254 in the United States District Court for the Western District of Virginia. On March 28, 2002, the district court denied relief on that petition. Swisher seeks a COA as to numerous claims raised in the district court. We address the following three claims below: (1) that the Commonwealth knowingly elicited perjurious testimony; (2) that Swisher received ineffective assistance of counsel; and (3) that the Commonwealth failed to turn over Brady material. II. We may only issue a COA if Swisher has made a “substantial showing of the denial of a constitutional right.” 28 U.S.C.A. § 2253(c)(2) (West Supp.2002). Absent a COA, “an appeal may not be taken” to this court from the district court’s denial of relief on the § 2254 petition. Id. § 2253(c)(1); cf. Miller-El v. Cockrell, - U.S. -, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) (noting that a COA is “a jurisdictional prerequisite” to consideration of an appeal by a prisoner denied habeas relief in the district court). To make the requisite substantial showing, “a petitioner must ‘show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were “adequate to deserve encouragement to proceed further.’ ’” ” Id. (quoting Slack, 529 U.S. at 484, 120 S.Ct. 1595 (in turn quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983))). The Supreme Court has held that “[wjhere a district court has rejected [a petitioner’s] constitutional claims on the merits, ... [t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong” to obtain a COA. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Further, “[w]hen the district court denies a habeas petition on procedural" }, { "docid": "15898422", "title": "", "text": "Mills. The Magistrate Judge recommended that the writ be granted on the condition that the Commonwealth either conduct a new sentencing hearing within 120 days or impose life imprisonment. The Commonwealth objected to the recommendation by arguing for the first time that the Mills claim should be denied as procedurally defaulted given Szuchon’s failure to exhaust the claim and the present unavailability of state remedies. The District Court summarily overruled the objections, adopted the Report and Recom- , mendation, granted the writ in accordance with the Magistrate Judge’s recommendation, and denied Szuchon’s remaining claims. The District Court also issued a certificate of appealability but failed to specify the issues on which Szuchon had made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(3) (“The certificate of appealability ... shall indicate which specific issue or issues satisfy the showing required .... ”). The Commonwealth timely appealed (C.A. No. 00-9000), and Szuchon timely cross-appealed (C.A. No. 00-9001). II. JURISDICTION AND STANDARD OF REVIEW The District Court had jurisdiction pursuant to 28 U.S.C. § 2254(a). We have jurisdiction over the Commonwealth’s appeal pursuant to 28 U.S.C. § 1291. As to Szuchon’s cross-appeal, we have jurisdiction pursuant to 28 U.S.C. §§ 2253 and 1291 over the issues that satisfy the certificate of appealability standard. See United States v. Cepero, 224 F.3d 256, 261-62 (3d Cir.2000) (en banc) (holding that issuance of a certificate of appealability is a jurisdictional requirement). Because the District Court failed to specify the issues for appeal, we will undertake that analysis here. A certificate of appealability may issue only upon “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If “a district court has rejected the constitutional claims on the merits, the showing required to satisfy, § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Our review is plenary on the merits of the claims over which we have jurisdiction," }, { "docid": "10631315", "title": "", "text": "counsel. . Section § 848(q)(4)(B) provides that, \"[i]n any post conviction proceeding under section 2254 or 2255 of title 28, United States Code, seeking to vacate or set aside a death sentence, any defendant who is or becomes financially unable to obtain adequate representation ... shall be entitled to the appointment of one or more attorneys....” 21 U.S.C. § 848(q)(4)(B), repealed by Terrorist Death Penalty Enhancement Act of 2005, Pub.L. No. 109-177, tit. II, subtit. B, § 222(c), 120 Stat. 192, 232 (2006). . Judge Greenberg dissented, stating that he would have dismissed the appeal. . Judge Greenberg again dissented from the denial of panel rehearing. Michael v. Horn, 414 F.3d 456, 2005 WL 1606069, at *1-8 (3d Cir. July 7, 2005) (Greenberg, J., dissenting). . Judge Greenberg concurred to emphasize that he viewed whatever had happened in the District Court respecting Michael's vacillations as \"beyond the scope of our certificate of appealability.” Michael, 144 Fed.Appx. at 264 (Greenberg, J., concurring). Judge Nygaard dissented because he believed that the June 2 order was correct and, to the extent it was ambiguous, could be supplemented. Id. at 264-65 (Nygaard, J., dissenting). . A COA may issue only upon \"a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If a \"district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Where, as here, the District Court has rejected the claims on procedural grounds, the prisoner must establish “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. . It is also well settled that a defendant has a right to waive representation. See Faretta v. California, 422 U.S. 806, 834-36, 95 S.Ct." }, { "docid": "2875793", "title": "", "text": "opportunity to respond via his objections to the Report and Recommendation, which this Court found unpersuasive. Moreover, this Court fully agrees with the Magistrate Judge’s rationale that “it is particularly appropriate” for the Court to sua sponte recognize a procedural default where, as here, Petitioner went out of his way to argue that state law provided him more protection than corresponding federal law and to urge the state courts to apply only state law to his claim. (Doc. # 94, at 1072-73.) For the foregoing reasons, the Court overrules Petitioner’s objections and agrees with the Magistrate Judge’s Report and Recommendations to deny this claim as waived due to Petitioner’s failure to fairly present the claim to the state courts as a federal claim. Because this Court concludes that Petitioner waived this claim, the Court does not reach the merits and expresses no opinion about the Magistrate Judge’s Report and Recommendations rejecting the claim on the merits. The Court DENIES Petitioner’s first ground for relief as waived. An appeal from the denial of a habeas corpus action may not proceed unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). To warrant a certificate of appealability, a petitioner must make a substantial showing that he was denied a constitutional right. 28 U.S.C. § 2253(c)(2); see also Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983); Lyons v. Ohio Adult Parole Authority, 105 F.3d 1063, 1073 (6th Cir.1997). He need not demonstrate that he will prevail on the merits; he needs only to demonstrate that the issues he seeks to appeal are deserving of further proceedings or are reasonably debatable among jurists of reason. Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. 3383. “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy 28 U.S.C. § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the con stitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)." } ]

[ { "docid": "3932126", "title": "", "text": "(1993). Accordingly, the bank fraud counts were not multiplicitous. L Restitution Harris contends that the district court erred in ordering him to pay restitution to the banks in the amount of $200 million. Harris argues that the district court failed to consider his financial needs and earning potential, and that, by ordering Harris to pay such a large amount, the court placed an undue burden on Harris and his dependents. We review a district court’s order of restitution for abuse of discretion. United States v. Lavin, 27 F.3d 40, 42 (2d Cir.), cert. denied, - U.S. -, 115 S.Ct. 453, 130 L.Ed.2d 362 (1994). Before imposing restitution, 18 U.S.C. § 3664(a) requires that the district court “consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’s dependents, and such other factors as the court deems appropriate.” While the court is not required to set forth detailed findings as to each factor, “the record must demonstrate that the court has considered these factors in ordering restitution.” United States v. Soto, 47 F.3d 546, 550 (2d Cir.1995) (citation and quotation marks omitted). In the present case, the district court based its decision to order $200 million in restitution on the fact that, although unlikely, Harris potentially could earn $200 million in the future. Thus, if the court ordered restitution in a lower amount and Harris did earn that amount of money, the banks would be foreclosed from a full recovery of their losses due to double jeopardy. The district court concluded that the banks should not have to risk not recovering simply because it was unlikely that Harris would make this amount of money. In United States v. Khan, 53 F.3d 507 (2d Cir.1995), cert. denied, - U.S. -, 116 S.Ct. 697, 133 L.Ed.2d 655 (1996), we held that the district court abused its discretion by failing to consider the financial resources of the defendants and the needs of the defendants’ dependents before ordering the defendants to pay" } ]

[ { "docid": "6912643", "title": "", "text": "order restitution”). In exercising this discretion, the court was required to consider “the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial ' needs and earning ability of the defendant and the defendant’s dependents, and such other factors as the court deems appropriate,” before fixing the amount of the restitution, if any, that the defendant was required to pay. 18 U.S.C.A. § 3664(a) (West 1985). Under the MVRA, an award of restitution is no longer discretionary. See 18 U.S.C.A. § 3663A(a)(1) (West Supp.1998). The district court must order restitution in the full amount of each victim’s losses without consideration of the defendant’s economic, circumstances. See 18 U.S.C.A. § 3664(f)(1)(A) (West Supp.1998). The effect of the MVRA can be detrimental to a defendant. Previously, after considering the defendant’s financial condition, the court had the discretion to order restitution in an amount less than the loss sustained by the victim. Under the MVRA, however, the court must order restitution to each victim in the full amount. In United States v. Baggett, 125 F.3d 1319 (9th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1089, 140 L.Ed.2d 145 (1998), the court held that the MVRA cannot be applied to those persons whose criminal activity occurred prior to its effective date. Id. at 1322. The Ninth Circuit reasoned as follows: The MVRA also caused a substantive change in the VWPA to appellant’s detriment. Most significantly, the amended version of the VWPA requires the court to impose “full” restitution without considering the defendant’s economic circumstances. 18 U.S.C. § 3664(f)(1)(A) (1996). After ordering full restitution, the court must set a payment schedule. 18 U.S.C. § 3664(f)(2). If the defendant proves indigency, the court can order nominal periodic payments. 18 U.S.C. § 3664(f)(3)(B). But under the old version tíf the VWPA, the procedure is reversed: the court must first consider the defendant’s financial circumstances before setting the amount of restitution to be paid. 18 U.S.C. § 3664(a) (1995). At the time appellants were sentenced, the amended VWPA thus had the potential to increase the" }, { "docid": "6542298", "title": "", "text": "U.S.C. § 3663(b)(2), (3). The defendant may be required to “reimburse the victim for lost income and necessary child care, transportation, and other expenses related to the participation in the investigation or prosecution of the offense ...” Id. § 3663(b)(4). Restitution to “any” victim is authorized. 18 U.S.C. § 3663(a)(1); United States v. Grundhoefer, 916 F.2d 788, 794 (2d Cir. 1990). The word “victim” is interpreted broadly. See, e.g., United States v. Durham, 755 F.2d 511, 512-13 (6th Cir.1985); United States v. Ferranti, 928 F.Supp. 206, 224 (E.D.N.Y.1996) (restitution- to insurance underwriters). A government entity can be a victim. See e.g., United States v. Ferranti, 928 F.Supp. at 224 (E.D.N.Y.1996) (restitution to New York Fire Department); United States v. Helmsley, 941 F.2d 71, 101 (2d Cir.1991) (restitution to the I.R.S. and the State of New York), cert. denied, 502 U.S. 1091, 112 S.Ct. 1162, 117 L.Ed.2d 409 (1992); United States v. Sunrhodes, 831 F.2d 1537 (10th Cir.1987) (restitution to the Indian Health Service). Where the costs to the victim have been advanced by a third party, that party can be reimbursed for the advances. See United States v. Ferranti, 928 F.Supp. 206, 224 (E.D.N.Y.1996) (advance of the New York City Fire Department to the widow of a fireman killed in an arson case and insurance payments to the owner of a building damaged by the arson were reimbursed pursuant to 18 U.S.C. § 3664(e)(1)). Before ordering restitution, the court must take into account (1) the amount of loss sustained by the victim as a result of the offense, (2) the financial resources available to the defendant, (3) the financial needs and earning ability of the defendant and his or her dependents, and (4) any other factors the court deems appropriate. 18 U.S.C. § 3664(a). It need not set forth its findings in detail, but the record must reflect its consideration of these statutorily mandated factors. United States v. Tortora, 994 F.2d 79, 81 (2d Cir.1993); see also United States v. Roy William Harris, 79 F.3d 223 (2d Cir.1996) (court must consider the financial needs of defendant and his dependents before" }, { "docid": "23623673", "title": "", "text": "This is especially true where, as here, the defendant stands convicted of, inter alia, jumping bail, constituting obstruction of justice which notifies defendant that an acceptance reduction will likely be difficult to obtain, at best. B. Restitution 1. Standard of Review 18 U.S.C. § 3663(a) authorizes the sentencing court to “order, in addition to or, in the case of a misdemeanor, in lieu of any other penalty authorized by law, that the defendant make restitution to any victim of such offense.” We explained in United States v. Porter, 41 F.3d 68, 70 (2d Cir.1994), that the statute “require[s] restitution whenever pos sible.” See also USSG § 5El.l(a)(l) (“The court shall ... enter a restitution order if such order is authorized under 18 U.S.C. §§ 3663-3664....”). The district court must consider certain factors when it decides whether to impose restitution. The sentencing court “shall” consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’s dependents, and such other factors as the court deems appropriate. 18 U.S.C. § 3664(a). If the record fails to demonstrate that the court considered these mandatory factors, then this court will vacate a restitution order. United States v. Soto, 47 F.3d 546, 551 (2d Cir.1995); United States v. Tortora, 994 F.2d 79, 81 (2d Cir.1993); United States v. Gelb, 944 F.2d 52, 56-57 (2d Cir.1991). The district court need not make specific findings with respect to each of these factors, but the record must reflect that the court did consider them. United States v. Mortimer, 52 F.3d 429, 436 (2d Cir.), cert. denied, — U.S. -, 116 S.Ct. 208, 133 L.Ed.2d 141 (1995). The threshold issue (the only issue we reach) is whether the record reflects that the district court engaged in the factor analysis which Congress has mandated in 18 U.S.C. § 3664(a), and not whether the district court’s consideration of those factors was an abuse of discretion. In the latter instance, the standard of review is extremely deferential. See United States" }, { "docid": "23623674", "title": "", "text": "the defendant’s dependents, and such other factors as the court deems appropriate. 18 U.S.C. § 3664(a). If the record fails to demonstrate that the court considered these mandatory factors, then this court will vacate a restitution order. United States v. Soto, 47 F.3d 546, 551 (2d Cir.1995); United States v. Tortora, 994 F.2d 79, 81 (2d Cir.1993); United States v. Gelb, 944 F.2d 52, 56-57 (2d Cir.1991). The district court need not make specific findings with respect to each of these factors, but the record must reflect that the court did consider them. United States v. Mortimer, 52 F.3d 429, 436 (2d Cir.), cert. denied, — U.S. -, 116 S.Ct. 208, 133 L.Ed.2d 141 (1995). The threshold issue (the only issue we reach) is whether the record reflects that the district court engaged in the factor analysis which Congress has mandated in 18 U.S.C. § 3664(a), and not whether the district court’s consideration of those factors was an abuse of discretion. In the latter instance, the standard of review is extremely deferential. See United States v. Atkinson, 788 F.2d 900, 902 (2d Cir.1986). 2. Review The government argues that the Probation Department’s PSR in this case considered the § 3664(a) factors and the district court satisfied the procedural requirements for the imposition of an order of restitution when it “followed in large part the recommendations of the Probation Department.” There are two problems with this argument. First, the PSR appears to have detailed only the loss to the victims and Giwah’s ability to pay. The government does not tell us how the PSR considered, in the words of § 3664(a), “the financial needs ... of the defendant and the defendant’s dependents.” Those considerations are mandatory- Second, the district court did not follow the recommendation of the PSR. The PSR recommended an order of full restitution (over $79,000), to be paid “with at least 10% of [Giwah’s] gross earnings.” In contrast, the district court ordered that restitution be paid “at a rate of at least 15 percent of the defendant’s annual gross earnings.” Thus the PSR recommended 10% and the district" }, { "docid": "22162036", "title": "", "text": "identify each of Lloyd’s underwriters and in not making precise findings as to the amounts each was owed. Lloyd’s acted as a unified entity with respect to this insurance claim and, as the Government argues, it was a “collective Lloyd’s” that issued the payment from its central funds. We believe this obviated any need for the sentencing judge to expressly identify each underwriter. Similarly, the sentencing judge acted within the bounds of his discretion in not making detailed findings with respect to whether Lloyd’s underwriters received compensation from other sources for their losses in light of the sworn affidavit of Lloyd’s New York counsel that attested to the fact that no such compensation was received. Ben Zvi’s contention that the district judge clearly erred in ordering restitution given her limited financial resources is also unpersuasive. A defendant’s limited financial resources at the time restitution is imposed is not dispositive of whether restitution is proper, see Mortimer, 52 F.3d at 436, particularly where the defendant has a reasonable potential for future earnings. Thus, “[e]ven an indigent defendant may be subject to the duty to pay restitution when and if funds are eventually acquired.” Porter, 90 F.3d at 70; see United States v. Ismail, 219 F.3d 76, 78 (2d Cir.2000) (per curiam) (present indigency not a barrier to restitution order where future earning power exists). Furthermore, in the absence of a defendant showing a restricted future earnings potential by a preponderance of the evidence, it is entirely reasonable for a district judge to presume future earnings in ordering restitution. See, e.g., 18 U.S.C. § 3664(e) (“The burden of demonstrating the financial resources of the defendant and the financial needs of the defendant ... shall be on the defendant.”). The record reveals no indication that Ben Zvi introduced any evidence of a restricted earnings potential. We thus conclude that the district court properly ordered restitution based on a default presumption of future earnings. CONCLUSION For the foregoing reasons, the judgment of the district court is affirmed. . For there to be plain error, \"there must be an error that is plain and that" }, { "docid": "11584762", "title": "", "text": "a month), his modest salary ($25,000 to $30,000 a year), and maintains that he does not have the financial capacity to have any hope of paying the restitution. District judges “enjoy broad discretion in ordering restitution.” Boss, 77 F.3d at 1552. However, in ordering restitution the district court must consider the mandatory factors set forth in 18 U.S.C. § 3664(a): (1) the amount of loss sustained by the victims as a result of the offense; (2) the financial resources of the defendant; (3) the financial needs of the defendant and his or her dependents; (4) the financial earning ability of the defendant and his or her dependents; (5) any other factors the court deems appropriate. Id. This court will reverse an order of restitution if the defendant shows either (1) that the district court repudiated a mandatory factor, or (2) that it was “not improbable” that the judge failed to consider a mandatory factor and was influenced thereby. United States v. Clemmons, 48 F.3d 1020, 1023 (7th Cir.1995), overruled on other grounds by United States v. Allender, 62 F.3d 909 (7th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 781, 133 L.Ed.2d 732 (1996). See also United States v. Gio, 7 F.3d 1279, 1291 (7th Cir.1993). “Although advisable to do so, the sentencing judge need not express explicit reliance on each of the mandatory factors.” Id. See also United States v. Boyle, 10 F.3d 485, 491 (7th Cir.1993). Further, the PSR can provide the relevant summary of the mandatory factors. United States v. Lesperance, 25 F.3d 553, 558 (7th Cir.1994). See also Clemmons,48 F.3d at 1023; Gio, 7 F.3d at 1292. The burden is on the defendant to establish his current and potential financial resources by a preponderance of the evidence. Boyle, 10 F.3d at 491. A defendant’s indigence is not determinative as to whether restitution is appropriate. Ross, 77 F.3d at 1552; Lesperance, 25 F.3d at 558. “Section 3664(a) does not require that the court find that a defendant can pay restitution, only that the judge consider his ability to pay.” Clemmons, 48 F.3d at 1023. A person who" }, { "docid": "4419203", "title": "", "text": "court gave adequate consideration to Mortimer’s financial status as required under 18 U.S.C. § 3664(a), but erred by failing to consider (1) the effect of this financial status on his ability to pay the restitution immediately and (2) pursuant to 18 U.S.C. § 3663(e)(1), the significance of any payments made by third parties to the victims of Mortimer’s crimes. We therefore vacate the district court’s order of restitution and remand for reconsideration consistent with this opinion. In United States v. Helmsley, 941 F.2d 71, 102 (2d Cir.1991), cert. denied, 502 U.S. 1091, 112 S.Ct. 1162, 117 L.Ed.2d 409 (1992), we held that a defendant who adopts the figures used in a pre-sentence report in argument before the district court, without registering an objection to them, has waived any right to challenge the amount of restitution on appeal. More recently, however, we have held that “because ‘[[Improperly ordered restitution constitutes an illegal sentence and amounts to plain error,’ ” the failure to object before the district court “is not a bar to [appellate] review.” United States v. Soto, 47 F.3d 546, 550 (2d Cir.1995) (citing United States v. Coleman, 9 F.3d 1480, 1486 n. 4 (10th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1234, 127 L.Ed.2d 578 (1994)). Mortimer’s challenges to his sentence are therefore reviewed as though an objection had been timely interposed. Mortimer argues that the district court inadequately considered his financial situation. Although a sentencing court is not required to set forth its findings in detail, the record must reflect that it has considered the statutorily mandated factors. United States v. Tortora, 994 F.2d 79, 81 (2d Cir.1993). Under § 3664(a), the sentencing court must consider: the amount of loss sustained by any victim as a result of the offense, [2] the financial resources of the defendant, [3] the financial needs and earning ability of the defendant and the defendant’s dependents, and [4] such other factors as the court deems appropriate. We have recently held that the fact that a pre-sentence report examines a defendant’s financial status does not, in and of itself, satisfy the requirement of" }, { "docid": "19673266", "title": "", "text": "concludes that Battista is subject to the MVRA. S. Battista May be Ordered to Pay Restitution Pursuant to the VWPA Alternatively, Battista is accountable for restitution pursuant to the VWPA. The VWPA provides that the court, when sentencing “a defendant convicted of [any offense under Title 18 and others], may order ... that the defendant make restitution to any victim of such offense.” 18 U.S.C. § 3663(a)(1)(A). In determining whether or not to order restitution pursuant to the VWPA, the district court must consider (1) the amount of the loss sustained by each victim as a result of the offense, (2) the financial resources of the defendant, (3) the financial needs and earning ability of the defendant and the defendant’s dependents and (4) such other factors as the court deems appropriate. 18 U.S.C. § 3663(a)(1)(B)(i)(I). “Courts are statutorily required to consider the enumerated restitution factors, but not to make detailed factual findings as to each factor.” United States v. Stevens, 211 F.3d 1, 6 (2d Cir.2000). The Second Circuit has held that, although it is not mandatory, the purpose of section 3663 “is to require restitution whenever possible.” United States v. Porter, 41 F.3d 68, 70 (2d Cir.1994) (“Porter T’) (citing United States v. Atkinson, 788 F.2d 900, 903 (2d Cir.1986)); see also United States v. Jacques, 321 F.3d 255, 261 (2d Cir.2003); United States v. Porter, 90 F.3d 64, 68 (2d Cir.1996) (“Porter 77”); U.S.S.G. 5E1.1(a)(1) (stating that “[t]he court shall enter a restitution order if such order is authorized” under 18 U.S.C. § 3663). Although the financial resources of the defendant are one of the mandatory section 3663(a) considerations, even a defendant with no present ability to pay can still be ordered to do so pursuant to sec tion 3663. As the Second Circuit has explained: A defendant’s limited financial resources at the time restitution is imposed is not dispositive of whether restitution is proper, see [United States u] Mortimer, 52 F.3d [429,] 436 [(2d Cir.1995)], particularly where the defendant has a reasonable potential for future earnings. Thus, “[e]ven an indigent defendant may be subject to the duty" }, { "docid": "23573076", "title": "", "text": "sentence and, therefore, plain error. See United States v. Mortimer, 52 F.3d 429, 436 (2d Cir.1995) (“Mortimer I ”). In order to impose restitution as part of the defendant’s sentence, the district court must first consider: 1) the amount of loss sustained by each victim as a result of the offense; 2) the financial resources of the defendant; 3) the financial needs and earning ability of the defendant and his dependents; and 4) any other factors which the court wishes to address. See United States v. Giwah, 84 F.3d 109, 114 (2d Cir.1996), citing former 18 U.S.C. § 3664(a), now codified at 18 U.S.C. § 3664(f)(l)(B)(2). “If the record fails to demonstrate that the court considered these mandatory factors, then this court will vacate a restitution order.” Id. While the district court need not make detailed factual findings on each factor, the record must demonstrate that the court considered the factors. See id. Moreover, “[e]ven if the [presentence report] adequately considers the [statutory] factors, that fact alone is not enough to insulate a restitution order from being vacated by this court.” Id. Rather, “there must be an affirmative act or statement allowing an inference that the district court in fact considered the defendant's ability to pay.” Mortimer I, 52 F.3d at 436 (quotations omitted). The district court’s consideration of the statutory factors is reviewed for abuse of discretion. See Giwah, 84 F.3d at 114. It is not an abuse of discretion to order an indigent defendant to pay full restitution. See Mortimer I, 52 F.3d at 436. “Even an indigent defendant may be subject to the duty to pay restitution when and if funds are eventually acquired.” Id. However, the district court must consider the effect of á defendant’s financial situation on his ability to pay the restitution immediately. See Mortimer I, 52 F.3d at 436 (holding that the district court abused its discretion by ordering immediate payment of restitution when the defendant filed a personal financial statement listing no assets.) Nevertheless, a defendant’s present financial situation does not eviscerate the district court’s discretion to order restitution. “[I]f full restitution" }, { "docid": "23573075", "title": "", "text": "on supervised release ... you shall pay any outstanding restitution at the rate of $100 per month or 10 percent of your gross income, whichever is greater.... The court did not impose a fine or the cost of incarceration and supervised release. Kinloek did not object to the restitution order at the time of sentencing. Kinloek now appeals his sentence. Former appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), seeking permission to withdraw as counsel. This court relieved him and appointed new counsel to address, among other things, whether the district court failed to consider the factors required by 18 U.S.C. § 3664(a) in setting terms for the payment of restitution. DISCUSSION I. Standards This court reviews an order of restitution for abuse of discretion. See United States v. Thompson, 113 F.3d 13, 14 (2d Cir.1997). Defendant’s failure to object to the restitution order at the time of sentencing does not preclude appellate review because an improper order of restitution constitutes an illegal sentence and, therefore, plain error. See United States v. Mortimer, 52 F.3d 429, 436 (2d Cir.1995) (“Mortimer I ”). In order to impose restitution as part of the defendant’s sentence, the district court must first consider: 1) the amount of loss sustained by each victim as a result of the offense; 2) the financial resources of the defendant; 3) the financial needs and earning ability of the defendant and his dependents; and 4) any other factors which the court wishes to address. See United States v. Giwah, 84 F.3d 109, 114 (2d Cir.1996), citing former 18 U.S.C. § 3664(a), now codified at 18 U.S.C. § 3664(f)(l)(B)(2). “If the record fails to demonstrate that the court considered these mandatory factors, then this court will vacate a restitution order.” Id. While the district court need not make detailed factual findings on each factor, the record must demonstrate that the court considered the factors. See id. Moreover, “[e]ven if the [presentence report] adequately considers the [statutory] factors, that fact alone is not enough to insulate a restitution order" }, { "docid": "22162034", "title": "", "text": "have no effect on her ability to seek such relief under § 212(c), however, because its availability turns not on the sentence imposed but on the period of actual incarceration. See Rabiu v. INS, 41 F.3d 879, 883 (2d Cir.1994). Second, Ben Zvi argues that the length of her sentence is a possible factor the INS judge might consider in deciding whether to grant discretionary relief. In fight of the multitude of factors the INS judge might opt to take under consideration, the uncertainty of the weight he might decide to place on each factor, and the uncertainty as to whether he would even consider the length of sentence imposed, we find that a potential denial of § 212(c) discretionary relief is entirely too speculative and abstract for Article III standing. Accordingly, Ben Zvi’s challenge to the district court’s use of the time-barred objects under Guideline § lB1.2(d) is dismissed as moot. III. Restitution Ben Zvi also appeals the district court’s imposition of restitution for $6,624,512, contending: (1) the judge did not identify each of the underwriters of Lloyd’s insurance policy and failed to determine the exact amount of money that each underwriter lost, and (2) the judge erred in imposing restitution in fight of Ben Zvi’s limited financial resources. In determining whether to order restitution under 18 U.S.C. § 3663, the sentencing judge is to “consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’s dependents, and such other factors as the court deems appropriate.” United States v. Mortimer, 52 F.3d 429, 436 (2d Cir.1995); see 18 U.S.C. § 3664(a). Our task on appeal is to ensure both that the sentencing judge did not abuse his discretion by failing to consider these factors, see United States v. Kinlock, 174 F.3d 297, 300 (2d Cir.1999),'and that the “findings resulting therefrom” were not in clear error. United States v. Porter, 90 F.3d 64, 68 (2d Cir.1996). The sentencing judge did not abuse his discretion in declining to" }, { "docid": "19673267", "title": "", "text": "not mandatory, the purpose of section 3663 “is to require restitution whenever possible.” United States v. Porter, 41 F.3d 68, 70 (2d Cir.1994) (“Porter T’) (citing United States v. Atkinson, 788 F.2d 900, 903 (2d Cir.1986)); see also United States v. Jacques, 321 F.3d 255, 261 (2d Cir.2003); United States v. Porter, 90 F.3d 64, 68 (2d Cir.1996) (“Porter 77”); U.S.S.G. 5E1.1(a)(1) (stating that “[t]he court shall enter a restitution order if such order is authorized” under 18 U.S.C. § 3663). Although the financial resources of the defendant are one of the mandatory section 3663(a) considerations, even a defendant with no present ability to pay can still be ordered to do so pursuant to sec tion 3663. As the Second Circuit has explained: A defendant’s limited financial resources at the time restitution is imposed is not dispositive of whether restitution is proper, see [United States u] Mortimer, 52 F.3d [429,] 436 [(2d Cir.1995)], particularly where the defendant has a reasonable potential for future earnings. Thus, “[e]ven an indigent defendant may be subject to the duty to pay restitution when and if funds are eventually acquired.” [Porter II ], 90 F.3d at 70; see United States v. Ismail, 219 F.3d 76, 78 (2d Cir.2000) (per curiam) (present indigency not a barrier to restitution order where future earning power exists). Furthermore, in the absence of a defendant showing a restricted future earnings potential by a preponderance of the evidence, it is entirely reasonable for a district judge to presume future earnings in ordering restitution. See, e.g., 18 U.S.C. § 3664(e) (“The burden of demonstrating the financial resources of the defendant and the financial needs of the defendant ... shall be on the defendant.”). United States v. Ben Zvi, 242 F.3d 89, 100 (2d Cir.2001) (ellipses and one alteration in original); see also Jacques, 321 F.3d at 262; Porter I, 41 F.3d at 70 (“It is well established that the indigency of a defendant does not per se preclude the ordering of restitution.”). In this case, an analysis of the pertinent factors dictates that Battista be responsible together with his co-conspirators for restitution" }, { "docid": "6542299", "title": "", "text": "party, that party can be reimbursed for the advances. See United States v. Ferranti, 928 F.Supp. 206, 224 (E.D.N.Y.1996) (advance of the New York City Fire Department to the widow of a fireman killed in an arson case and insurance payments to the owner of a building damaged by the arson were reimbursed pursuant to 18 U.S.C. § 3664(e)(1)). Before ordering restitution, the court must take into account (1) the amount of loss sustained by the victim as a result of the offense, (2) the financial resources available to the defendant, (3) the financial needs and earning ability of the defendant and his or her dependents, and (4) any other factors the court deems appropriate. 18 U.S.C. § 3664(a). It need not set forth its findings in detail, but the record must reflect its consideration of these statutorily mandated factors. United States v. Tortora, 994 F.2d 79, 81 (2d Cir.1993); see also United States v. Roy William Harris, 79 F.3d 223 (2d Cir.1996) (court must consider the financial needs of defendant and his dependents before ordering payment of restitution), cert. denied, — U.S. -, 117 S.Ct. 142, 136 L.Ed.2d 89 (1996); United States v. Mortimer, 52 F.3d 429, 436 (2d Cir.) (an affirmative act or statement on the part of the court demonstrating its consideration of the defendant’s ability to pay is necessary), cert. denied, — U.S. -, 116. S.Ct. 208, 133 L.Ed.2d 141 (1995). Future earning capacity may be considered if the defendant is presently incapable of paying. United States v. Mortimer, 52 F.3d 429, 436 (2d Cir.) (“Even an indigent defendant may be subject to the duty to pay restitution when and if funds are eventually acquired”), cert. denied, — U.S. -, 116 S.Ct. 208, 133 L.Ed.2d 141 (1995); United States v. Atkinson, 788, F.2d 900, 904 (2d Cir.1986); United States v. Brown, 744 F.2d 905, 911 (2d Cir.) (citing 18 U.S.C. § 3663(f)(2)(B); “recognizing that indigency may be temporary, Congress provided for payment of restitution during a period of up to five years after the completion of any prison sentence imposed”), cert. denied, 469 U.S. 1089, 105" }, { "docid": "19848147", "title": "", "text": "denied, — U.S. —, 115 S.Ct. 2628, 132 L.Ed.2d 868 (1995). In deciding what amount of restitution is appropriate under the Victim Witness Protection Act, the district court “shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’s dependents, and such other factors as the court deems appropriate.” 18 U.S.C. § 3664(a). Although the VWPA “does not require express findings on these factors and grants the district court broad discretion in the kind and amount of evidence required,” United States v. Ramilo, 986 F.2d 333, 335 (9th Cir.1993), the record must indicate that “the district court considered the defendant’s future ability to pay.” United States v. Bachsian, 4 F.3d 796, 800 (9th Cir.1993), cert. denied, 510 U.S. 1080, 114 S.Ct. 901, 127 L.Ed.2d 92 (1994). Thus, while “indigence and a present inability to pay do not preclude imposition of restitution,” Miguel, 49 F.3d at 511, a VWPA restitution order must be based on “some evidence the defendant may be able to pay the amount fixed when required to do so.” Ramilo, 986 F.2d at 335. Analysis During sentencing, the district court imposed $881,000 in restitution pursuant to the VWPA. The $881,000 figure represented the aggregated losses of nine Wellington investors. English asserts that the district court abused its discretion by entering the restitution order without considering English’s future ability to pay restitution. The government contends that the court did consider English’s future ability to pay, and also asserts that the record supports the district court’s decision to impose restitution. We affirm the district court’s restitution order. The record demonstrates that the district court did consider English’s ability to pay. Both the government and defense counsel addressed English’s future ability to pay restitution during the sentencing hearing. Moreover, the Presentenee Report, which the court indicated it had “read, reviewed, and considered,” contained information regarding English’s future ability to pay. Cf. Bachsian, 4 F.3d at 800 (“[T]he record reflects that the district court considered the presentence report" }, { "docid": "19848146", "title": "", "text": "that “under the money laundering statute [18 U.S.C. § 1956], due to the fungibility of money, it is sufficient to prove that the funds in question came from an account in which tainted proceeds were commingled with other funds.” Id. at 1365. The government established during trial that the money laundering transactions charged in the indictment involved accounts that included the proceeds of unlawful activity; even English does not appear to dispute that at least some of the funds involved in the money laundering counts were derived from English’s investment scheme. Because Garcia clearly controls, we reject English’s § 1956(a) argument. F. The District Court’s Restitution Order Standard of Review A district court’s restitution order is reviewed for abuse of discretion. United States v. Rice, 38 F.3d 1536, 1540 (9th Cir.1994); United States v. Woodley, 9 F.3d 774, 780 (9th Cir.1993). The court has broad discretion in ordering restitution under the Victim and Witness Protection Act of 1982 CVWPA”), 18 U.S.C. §§ 3663, 3664. United States v. Miguel, 49 F.3d 505, 510-11 (9th Cir.), cert. denied, — U.S. —, 115 S.Ct. 2628, 132 L.Ed.2d 868 (1995). In deciding what amount of restitution is appropriate under the Victim Witness Protection Act, the district court “shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’s dependents, and such other factors as the court deems appropriate.” 18 U.S.C. § 3664(a). Although the VWPA “does not require express findings on these factors and grants the district court broad discretion in the kind and amount of evidence required,” United States v. Ramilo, 986 F.2d 333, 335 (9th Cir.1993), the record must indicate that “the district court considered the defendant’s future ability to pay.” United States v. Bachsian, 4 F.3d 796, 800 (9th Cir.1993), cert. denied, 510 U.S. 1080, 114 S.Ct. 901, 127 L.Ed.2d 92 (1994). Thus, while “indigence and a present inability to pay do not preclude imposition of restitution,” Miguel, 49 F.3d at 511, a VWPA restitution order must" }, { "docid": "22162035", "title": "", "text": "the underwriters of Lloyd’s insurance policy and failed to determine the exact amount of money that each underwriter lost, and (2) the judge erred in imposing restitution in fight of Ben Zvi’s limited financial resources. In determining whether to order restitution under 18 U.S.C. § 3663, the sentencing judge is to “consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’s dependents, and such other factors as the court deems appropriate.” United States v. Mortimer, 52 F.3d 429, 436 (2d Cir.1995); see 18 U.S.C. § 3664(a). Our task on appeal is to ensure both that the sentencing judge did not abuse his discretion by failing to consider these factors, see United States v. Kinlock, 174 F.3d 297, 300 (2d Cir.1999),'and that the “findings resulting therefrom” were not in clear error. United States v. Porter, 90 F.3d 64, 68 (2d Cir.1996). The sentencing judge did not abuse his discretion in declining to identify each of Lloyd’s underwriters and in not making precise findings as to the amounts each was owed. Lloyd’s acted as a unified entity with respect to this insurance claim and, as the Government argues, it was a “collective Lloyd’s” that issued the payment from its central funds. We believe this obviated any need for the sentencing judge to expressly identify each underwriter. Similarly, the sentencing judge acted within the bounds of his discretion in not making detailed findings with respect to whether Lloyd’s underwriters received compensation from other sources for their losses in light of the sworn affidavit of Lloyd’s New York counsel that attested to the fact that no such compensation was received. Ben Zvi’s contention that the district judge clearly erred in ordering restitution given her limited financial resources is also unpersuasive. A defendant’s limited financial resources at the time restitution is imposed is not dispositive of whether restitution is proper, see Mortimer, 52 F.3d at 436, particularly where the defendant has a reasonable potential for future earnings. Thus, “[e]ven an indigent" }, { "docid": "17136680", "title": "", "text": "the .restitution order at issue in this case. When determining the appropriate amount of restitution, a sentencing court “shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’s dependents, and such other factors as the court deems appropriate.” 18 U.S.C. § 3664(a). The fact that a defendant is without financial resources at the time of sentencing is not itself a bar to a restitution order. United States v. Gabriele, 24 F.3d 68, 73 (10th Cir.1994). A restitution order, however, must be consistent with a defendant’s ability to pay. United States v. Gilbreath, 9 F.3d 85, 86 (10th Cir.1993). Thus, “[a] restitution order will be upheld if the evidence indicates a defendant has some assets or earning potential and thus possibly may be able to pay the amount ordered.” Rogat, 924 F.2d at 985 (emphasis added). Moreover, the burden is on the defendant to prove that he lacks the ability to pay full restitution. 18 U.S.C. § 3664(d). Today we hold that when a defendant has secreted proceeds from an illegal activity, the illegal proceeds are presumed assets of the defendant unless the defendant proves otherwise. As the Third Circuit recently stated: [We] place the burden of proof on the defendant to show what has happened to all of the illegally obtained assets. All assets for which the defendant cannot account may be included in the amount of restitution ordered. To the extent that records are unavailable, the risk of inaccuracy should be borne by the defendant rather than the victims. United States v. Voigt, 89 F.3d 1050, 1092 (3d Cir.1996) (quoting United States v. Copple, 74 F.3d 479, 486 (3d Cir.1996) (Alito, J., concurring) (citation omitted)), cert. denied, — U.S. —, 117 S.Ct. 623, 136 L.Ed.2d 546 (1996). See also United States v. Lampien, 89 F.3d 1316, 1325 (7th Cir.1996) (“[I]f Lampien is unable to prove to the satisfaction of the district judge that she no longer possesses any part of the nearly one-half million" }, { "docid": "6542300", "title": "", "text": "ordering payment of restitution), cert. denied, — U.S. -, 117 S.Ct. 142, 136 L.Ed.2d 89 (1996); United States v. Mortimer, 52 F.3d 429, 436 (2d Cir.) (an affirmative act or statement on the part of the court demonstrating its consideration of the defendant’s ability to pay is necessary), cert. denied, — U.S. -, 116. S.Ct. 208, 133 L.Ed.2d 141 (1995). Future earning capacity may be considered if the defendant is presently incapable of paying. United States v. Mortimer, 52 F.3d 429, 436 (2d Cir.) (“Even an indigent defendant may be subject to the duty to pay restitution when and if funds are eventually acquired”), cert. denied, — U.S. -, 116 S.Ct. 208, 133 L.Ed.2d 141 (1995); United States v. Atkinson, 788, F.2d 900, 904 (2d Cir.1986); United States v. Brown, 744 F.2d 905, 911 (2d Cir.) (citing 18 U.S.C. § 3663(f)(2)(B); “recognizing that indigency may be temporary, Congress provided for payment of restitution during a period of up to five years after the completion of any prison sentence imposed”), cert. denied, 469 U.S. 1089, 105 S.Ct. 599, 83 L.Ed.2d 708 (1984); but see Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983) (constitutional objections may be encountered if restitution order is enforced at a time when the defendant is unable, through no fault of his own, to comply). The F.B.I.’s decision to relocate Burnham and family was a direct and necessary response to defendant’s specific conduct, particularly the threats that others would pursue Burnham and his family if defendant were arrested. Were it not for defendant’s credible threats, there would have been no need for the Burnhams to move and the cost of relocation would not have been incurred. Under subsection 3663(b)(4), a restitution order “may require that such defendant— ... in any case, reimburse the victim for lost income and necessary child care, transportation, and other expenses related to participation in the investigation or prosecution of the offense or attendance at the proceedings related to the offense.” 18 U.S.C. § 3663(b)(4). Burnham and his family had to relocate during the investigation and prosecution of the" }, { "docid": "4419204", "title": "", "text": "v. Soto, 47 F.3d 546, 550 (2d Cir.1995) (citing United States v. Coleman, 9 F.3d 1480, 1486 n. 4 (10th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1234, 127 L.Ed.2d 578 (1994)). Mortimer’s challenges to his sentence are therefore reviewed as though an objection had been timely interposed. Mortimer argues that the district court inadequately considered his financial situation. Although a sentencing court is not required to set forth its findings in detail, the record must reflect that it has considered the statutorily mandated factors. United States v. Tortora, 994 F.2d 79, 81 (2d Cir.1993). Under § 3664(a), the sentencing court must consider: the amount of loss sustained by any victim as a result of the offense, [2] the financial resources of the defendant, [3] the financial needs and earning ability of the defendant and the defendant’s dependents, and [4] such other factors as the court deems appropriate. We have recently held that the fact that a pre-sentence report examines a defendant’s financial status does not, in and of itself, satisfy the requirement of § 3664(a) that the court consider the defendant’s financial capacity and prospects. Soto, 47 F.3d at 551. Rather, there must be “an affirmative act or statement allowing an inference that the district court in fact considered the defendant’s ability to pay.” Id. The transcript of Mortimer’s sentencing hearing indicates that the district court met Soto’s requirements. The court addressed restitution on one page of the transcript and within moments, on the next page, declined to impose a fine on Mortimer. In declining to impose the fine, the district court noted that it had “eon-sider[ed] [his] present financial condition.” Joint Appendix (“JA”) at 85. This statement supports an inference that the court had considered the defendant’s financial ability prior to the hearing, and had that in mind when the court ruled on restitution and fines. Furthermore, the court was also aware that in his plea agreement Mortimer consented to pay up to $56,000 in restitution. The fact that Mortimer may have limited financial resources does not render the order of restitution an abuse of discretion. Even" }, { "docid": "5853537", "title": "", "text": "uncertainty among courts as to who the precise beneficiaries should be and what calculations should be used to determine loss for restitution purposes. See United States v. Gibbens, 25 F.3d 28, 32-33 (1st Cir.1994) (government at any level may be a victim); Mary C. Maclsaac, Restitution, 83 Geo.L.J. 1318, 1320-21 (1995) (various calculations exist to measure actual loss). This issue need not be plumbed since defendant has stipulated to the restitution amounts due to each claimant. The court approved the stipulation after a full hearing in which the losses agreed to were proven. Before restitution is imposed, the Victim and Witness Protection Act requires that the court take into account, in addition to “the amount of the loss sustained by any victim as a result of the offense, the [defendant’s] financial resources and ability to pay, the financial needs and earning ability of the defendant and [his] dependents, and such factors as the court deems appropriate.” 18 U.S.C. § 3664(a). Although the court is not required to set forth detailed findings as to every factor, “ ‘the record must demonstrate that the court has considered these factors in ordering restitution.’ ” United States v. Soto, 47 F.3d 546, 550 (2d Cir.1995) (citation omitted); see also United States v. Roy William Harris, 79 F.3d 223 (2d Cir.1996) (court must consider the financial needs of defendant and his dependents before ordering payment of restitution); United States v. Tortora, 994 F.2d 79, 81 (2d Cir.1993) (record must reflect that statutory factors were considered in ordering restitution). In order to ensure that the victims are fully compensated for their losses the court may impose pre- and post-judgement interest. 28 U.S.C. § 1961(b); United States v. Simpson, 8 F.3d 546, 552 (7th Cir.1993); United States v. Smith, 944 F.2d 618, 626 (9th Cir.1991), cert. denied, 503 U.S. 951, 112 S.Ct. 1515, 117 L.Ed.2d 651 (1992) (same); United States v. Rochester, 898 F.2d 971, 983 (5th Cir.1990) (interest permitted even though not mentioned in statute). The interest rate on criminal restitution is collected in the manner provided for fines. 18 U.S.C. § 3663(h)(1)(A). The government is" } ]

[ { "docid": "22558014", "title": "", "text": "but we perceive no reason why Congress would intend the drastic sanction of a perjury prosecution to cure a testimonial mishap that could readily have been reached with a single additional question by counsel alerb — as every examiner ought to be — to the incongruity of petitioner’s unresponsive answer. Under the pressures and tensions of interrogation, it is not uncommon for the most earnest witnesses to give answers that are not entirely responsive. Sometimes the witness does not understand the question, or may in an excess of caution or apprehension read too much or too little into it. It should come as no surprise that a participant in a bankruptcy proceeding may have something to conceal and consciously tries to do so, or that a debtor may be embarrassed at h'is plight and yield information reluctantly. It is the responsibility of the lawyer to probe ; testimonial interrogation, and cross-examination in particular, is a probing, prying, pressing form of inquiry. If a witness evades, it is the lawyer’s responsibility to recognize the evasion and to bring the witness back to the mark, to flush out the whole truth with the tools of adversary examination. It is no answer to say that here the jury found that petitioner intended to mislead his examiner. A jury should not be permitted to engage in conjecture whether an unresponsive answer, true and complete on its face, was intended to mislead or divert the examiner; the state of mind of the witness is relevant only to the extent that it bears on whether “he does not believe [his answer] to be true.” To hold otherwise would be to inject a new and confusing element into the adversary testimonial system we know. Witnesses would be unsure of the extent of their responsibility for the misunderstandings and inadequacies of examiners, and might well fear having that responsibility tested by a jury under the vague rubric of “intent to mislead” or “perjurv by implication.” The seminal modern treatment of the history of the offense concludes that one consideration of policy overshadowed all others during the years when" } ]

[ { "docid": "10898103", "title": "", "text": "credentials from the State of Florida indicating that he was licensed to practice medicine in that state.” As with the situations in Slawik, supra, 548 F.2d at 83, and Tonelli, supra, 577 F.2d at 198, the second count in Eddy’s indictment fails to specify the alleged falsehood in his testimony. The indictment does not precisely allege what was false about Eddy’s response. It cannot be determined whether Eddy testified falsely because (1) he failed to remember going to Florida when in fact there was sufficient proof that he had remembered going there, or because (2) he denied ever going to Florida when in fact he knew he had been there. If the former, there is no factual basis in the indictment or the record itself to demonstrate the untruthfulness of Eddy’s declaration. Because the indictment does not allege that Eddy’s failure to remember was perjurious, it will not be so assumed. United States v. Brumley, 560 F.2d 1268, 1277 (5th Cir.1977). Nor is the latter interpretation appropriate in' view of Eddy’s equivocal response. Concededly, Eddy’s answer was obscure, and may have misled the casual observer. Nevertheless, it was the Assistant United States Attorney’s “responsibility to recognize [Eddy’s] evasion and bring him back to the mark, to flush out the whole truth with the tools of adversary examination.” Bronston, 409 U.S. at 359, 93 S.Ct. at 600. This was not done. Here, the crucial question was hardly precise. In fact, it was a multiple question with at least four separate inquiries. Understandably, Eddy’s answer reflected the same imprecision. “A charge of perjury, however, is not a substitute for careful questioning on the part of a prosecutor.” United States v. Tonelli, supra, 577 F.2d at 198. In a perjury case, the defendant “may not be assumed into the penitentiary.” United States v. Brumley, supra, 560 F.2d at 1277. Any reading of the charges found in Count II of the indictment leads one to believe that it has failed to set forth with sufficient clarity the precise falsehood alleged, the factual basis of that falsehood and the objective truth in “stark contrast so" }, { "docid": "2937154", "title": "", "text": "volume and the limited admissibility of some of the evidence. (Citations omitted.) The prejudicial effect of evidence relating to the guilt of code-fendants is generally held to be neutralized by careful instruction by the trial judge. (Citations omitted.) United States v. Escalante, 637 F.2d 1197, 1201 (9th Cir.1980), cert. denied, 449 U.S. 856, 101 S.Ct. 154, 66 L.Ed.2d 71 (1980). Appellants have not shown the requisite prejudice. Their stories were similar, thus the risk of the jury confusing the evidence with respect to each appellant was minimal. No violation of a substantive right by reason of a joint trial was shown. Furthermore, during the course of the trial, the judge was careful to give limiting instructions advising the jury that certain evidence was admitted only against a particular defendant. We therefore conclude that the trial judge did not abuse his discretion when he denied severance. PERJURY COUNTS Appellants contend that the perjury counts are fatally flawed for two reasons: (1) the prosecutor’s grand jury questions, restated in the indictment, are ambiguous; and (2) the statements in the indictment’s truth paragraph are not in stark contrast with appellants’ answers before the grand jury. For the reasons set forth below, we affirm the conviction on Count 2 and reverse on Counts 3 and 4. Bronston v. United States, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973), clearly states the basic ingredient of a successful perjury prosecution: “Precise questioning is imperative as a predicate for the offense of perjury.” Id. at 362, 93 S.Ct. at 602. Stated another way: “The burden is on the questioner to pin the witness down to the specific object of the questioner’s inquiry.” Id. at 360, 93 S.Ct. at 601. Moreover, as the Third Circuit correctly cautioned: “No guessing is tolerated and the indictment must set out the allegedly perjurious statements and the objective truth in stark contrast so that the claim of falsity is clear to all who read the charge.” United States v. Tonelli, 577 F.2d 194, 195 (3d Cir.1978). With these precepts in mind, we examine each count separately. Count 2 — St." }, { "docid": "7561556", "title": "", "text": "do not dispute, however, that the notice sent by Callanan, Jr. disguised the fact of his representation of Judeh by naming another attorney in the firm as lawyer of record. If deemed by the jury an attempt to avoid detection, this would be a sufficient basis for conviction under the statute. See United States v. Hopkins, 357 F.2d 14, 17 (6th Cir.), cert. denied, 385 U.S. 858, 87 S.Ct. 107, 17 L.Ed.2d 84 (1966) (the mailings do not have to contain fraudulent matters). Cf. United States v. Tarnopol, 561 F.2d 466 (3d Cir. 1977), and Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277 (1960). We find that the change was adequate under the law, and that there was sufficient evidence upon which to base a conviction for mail fraud. 8. THE ELEMENTS OF CALLANAN, JR.’S ALLEGED VIOLATION OF OBSTRUCTING A CRIMINAL INVESTIGATION, 18 U.S.C. § 1510, (COUNT VII) Callanan, Jr. argues, without citing any supporting case law, that in order to sustain a conviction on this charge, the government must prove that he was aware of a violation of federal criminal law before he can be convicted of obstruction. Calla-nan, Jr.’s cover-up activities regarding Judeh’s silence sufficiently constituted a basis for an obstruction of justice charge and there was sufficient evidence of the intent required. The jury instruction in respect to this charge was a standard one. No error was demonstrated by defendants in respect to Count VII. 9. INDICTMENT OF CALLANAN, JR. FOR FALSE DECLARATIONS BEFORE A GRAND JURY, 18 U.S.C. § 1623 The government’s indictment precisely identified Callanan, Jr.’s alleged falsehoods before the grand jury. The indictment listed simple questions to which Callanan answered “yes” or “no.” Calla-nan cites passages from two opinions stating the “indictment must set out ... objective truth,” United States v. Tonelli, 577 F.2d 194, 195 (3d Cir.1978), and “the grand jury must charge specifically what it believes are the true factors,” United States v. Slawik, 548 F.2d 75 (3d Cir.1977). These cases involved insufficient indictments that failed to identify the specific falsity in statements made by the defendants." }, { "docid": "23381522", "title": "", "text": "the district court or to the grand jury as “literally true.” Moreover, we have “eschewed] a broad reading of Bronston,” id., and held that [a]s a general rule, the fact that there is some ambiguity in a falsely answered question will not shield the respondent from a perjury or false statements prosecution.... Normally, it is for the petit jury to decide which construction the defendant placed on the question.... It is difficult to define the point at which a question becomes so ambiguous that it is not amenable to jury interpretation. We have stated that the point is reached *when it [is] entirely unreasonable to expect that the defendant understood the question posed to him.’ Slawik, 548 F.2d at 86. Other courts have said that ‘[a] question is fundamentally ambiguous when it “is not a phrase with a meaning about which men of ordinary intellect could agree, nor one which could be used with mutual understanding by a questioner and answerer unless it were defined at the time it were sought and offered as testimony.”’ United States v. Ryan, 828 F.2d 1010, 1015 (3d Cir.1987) (quoting United States v. Lights, 782 F.2d 367, 375 (2d Cir.1986)) (some internal citations omitted). Under either construction of the Bronston standard for ambiguity, it is clear that the questions posed to Reilly were not so ambiguous that they were no longer amenable to jury interpretation. D. Did Reilly’s false declarations indictment adequately allege the falsity of Reilly’s responses to the grand jury and the district court? Reilly argues that the indictments on which his false declaration convictions were based were defective because they failed to allege adequately the falsity of his responses to the district court and the grand jury. See R. br. at 56-60. We have held that “a conviction under 18 U.S.C. § 1623 may not stand where the indictment fails to set forth the precise falsehood alleged and the factual basis of its falsity with sufficient clarity to permit a jury to determine its verity and to allow meaningful judicial review of the materiality of those falsehoods.” Slawik, 548 F.2d at" }, { "docid": "10898100", "title": "", "text": "and to the point. The perjury statute was not intended to extend situations where “a wily witness succeeds in derailing the questioner — so long as the witness speaks the literal truth. The burden is on the questioner to pin the witness down to the specific object of the questioner’s inquiry.” Bronston, 409 U.S. at 360, 93 S.Ct. at 601. We also reject the argument that, when a witness is confronted with ambiguous questions, it is for the jury to decide whether the witness has committed perjury. Bronston discredited this type of jury conjecture which is now contended should be permissible. Bronston, 409 U.S. at 359, 93 S.Ct. at 600. A contrary rule would allow a jury to infer from a witness’ unresponsive answer to a vague question that the witness knew his testimony to be false. In expressly rejecting this, Bronston, 409 U.S. at 358, 93 S.Ct. at 600, the Court stated, Under the pressures and tensions of interrogation, it is not uncommon for the most earnest witnesses to give answers that are not entirely responsive. Sometimes the witness does not understand the question, or may in an excess of caution or apprehension read too much or too little into it____ It is the responsibility of the lawyer to probe; testimonial interrogation, and cross-examination in particular, is a probing, prying, pressing form of inquiry. If a witness evades, it is the lawyer’s responsibility to recognize the evasion and to bring the witness back to the mark, to flush out the whole truth with the tools of adversary examination. See also United States v. Tonelli, 577 F.2d at 200; United States v. Slawik, supra, 548 F.2d at 84 (petit jury should not be permitted “to resolve not only ambiguity of the interrogator’s question and the defendant’s response, but also the ambiguity of the grand jury’s understanding of both question and response.”) Similarly, Eddy’s conviction under Count II of the indictment must also be reversed and the indictment dismissed. The testimony charged to have been perjured, and used as the basis for Count II also occurred during the suppression hearing during" }, { "docid": "22891445", "title": "", "text": "595, 34 L.Ed.2d 568 (1973) (holding that a defendant’s true, if misleading, testimony cannot support a conviction under the federal perjury statute). The Bronston Court stressed that it is incumbent on the government to examine a witness with the precision and thoroughness necessary to establish the elements of perjury: [W]e perceive no reason why Congress would intend the drastic sanction of a perjury prosecution to cure a testimonial mishap that could readily have been reached with a single additional question by counsel alert — as every examiner ought to be — to the incongruity of petitioner’s unresponsive answer. Under the pressures and tensions of interrogation, it is not uncommon for the most earnest witnesses to give answers that are not entirely responsive. Sometimes the witness does not understand the question, or may in an excess of caution or apprehension read too much or too little into it.... It is the responsibility of the lawyer to probe; testimonial interrogation, and cross-examination in particular, is a probing, prying, pressing form of inquiry. If a witness evades, it is the lawyer’s responsibility to recognize the evasion and to bring the witness back to the mark, to flush out the whole truth with the tools of adversary examination. 409 U.S. at 358-59, 93 S.Ct. 595. In United States v. Serafini, 167 F.3d 812 (3d Cir.1999), we heeded this guidance and held that a perjury conviction under 18 U.S.C. § 1623 cannot be predicated on a response to a “fundamentally ambiguous” question. 167 F.3d at 820; see id. at 824 (“[L]ack of specificity [i]s a form of imprecision whose ‘consequences must be laid at the table of the questioner, not the questioned.’ ” (ellipses omitted) (quoting United States v. Sainz, 772 F.2d 559, 563 (9th Cir.1985))). While our opinion in Serafini speaks to whether a question is so “fundamentally ambiguous” that it cannot be submitted to the jury as the basis for a finding of perjury, it compels us to consider whether, in the context of § 3C1.1, a question is sufficiently precise to support the factual findings made by the District Court. As the" }, { "docid": "2937162", "title": "", "text": "were going to Anguilla, and we were asked if we would take something with us to Anguilla. Q. What were you asked to take to Anguilla? A. An envelope to be deposited or to be given to a bank in Anguilla. Q. To whom was the envelope given? A. Mr. St. Clair. The truth paragraph of Count 4 states: The above testimony of Victor J. Cowley, as he then well knew and believed, was false, in that he then well knew and believed that James W. Paige caused the Templeton checks to be delivered to Michael J. St. Clair. He knew the checks purportedly contained in the envelope re ferred to were not given to Michael James St. Clair by a “Mr. Templeton.” Appellant Cowley argues that this count is defective in that the truth paragraph does not state the converse of his grand jury testimony. That testimony concerns an envelope given to St. Clair. The thrust of the truth paragraph relates to checks. Though Cowley talked about an envelope to be given to a bank, there is not one word about checks in his grand jury testimony quoted in Count 4. The examiner should have been more precise in his questioning. “It is the responsibility of the lawyer to probe .... If a witness evades, it is the lawyer’s responsibility to recognize the evasion and to bring the witness back to the mark, to flush out the whole truth with the tools of adversary examination.” Bronston, 409 U.S. at 358-59, 93 S.Ct. at 600. The questioner was not precise. He failed “to pin the witness down to the specific object of the questioner’s inquiry. Id. at 360, 93 S.Ct. at 600-601. Count 4 fails to set out in “stark contrast” the allegedly false statements and the' objective truth. Tonelli, 577 F.2d at 195. Therefore, the conviction is reversed. See United States v. Slawik, 548 F.2d 75, 83 (3d Cir.1977). ADMISSION OF TESTIMONY CONCERNING THE POSTMARK The trial judge allowed the managing director of the International Investment Bank in Anguilla to testify, over objection, that he had received two letters" }, { "docid": "10898091", "title": "", "text": "initially succeeds in avoiding direct answers to an examiner’s questions, it is the questioner’s burden “to pin the witness down to the specific object” of his inquiry. Id. at 360, 93 S.Ct. at 601. Although Bronston dealt with a conviction under 18 U.S.C. § 1621, it's reasoning has been extended to 18 U.S.C. § 1623, the provision involved here. United States v. Cowley, 720 F.2d 1037, 1042 (9th Cir.1983); United States v. Finucan, 708 F.2d 838, 847 (1st Cir.1983); United States v. Niemiec, 611 F.2d 1207, 1210 (7th Cir.1980); United States v. Tonelli, 577 F.2d 194, 198 n. 3 (3d Cir.1978); United States v. Crippen, 570 F.2d 535, 537 (5th Cir.1978); United States v. Paolicelli, 505 F.2d 971, 973 (4th Cir.1974). As the Third Circuit has noted, in perjury cases, “[n]o guessing is tolerated [in the drafting of a perjury indictment] and the indictment must set out the allegedly perjurious statements and the objective truth in stark contrast so that the claim of falsity is clear to all who read the charge.” United States v. Tonelli, supra, 577 F.2d at 195. In order to sustain a perjury conviction, the questions and answers which support the conviction must demonstrate both that the defendant was fully aware of the actual meaning behind the examiner’s questions and that the defendant knew his answers were not the truth. Bronston, supra, 409 U.S. at 358-59, 93 S.Ct. at 599-600. “Once a defendant raises the affirmative defense of his belief in the truth of a statement, the burden is on the government to disprove this belief beyond a reasonable doubt.” United States v. Stassi, 443 F.Supp. 661, 666-67 (D.N.J.1977). Vague and ambiguous questions are not acceptable. See United States v. Wall, 371 F.2d 398, 399-400 (6th Cir.1967), cited with approval in Bronston, 409 U.S. at 360, 93 S.Ct. at 600; United States v. Finucan, supra, 708 F.2d at 846-48; United States v. Tonelli, 577 F.2d at 200; United States v. Cook, 497 F.2d 753, 764 (9th Cir.1972) (Ely, J., dissenting). But cf. United States v. Bell, 623 F.2d 1132, 1136 (5th Cir.1980) (defendant’s understanding of the" }, { "docid": "2937163", "title": "", "text": "bank, there is not one word about checks in his grand jury testimony quoted in Count 4. The examiner should have been more precise in his questioning. “It is the responsibility of the lawyer to probe .... If a witness evades, it is the lawyer’s responsibility to recognize the evasion and to bring the witness back to the mark, to flush out the whole truth with the tools of adversary examination.” Bronston, 409 U.S. at 358-59, 93 S.Ct. at 600. The questioner was not precise. He failed “to pin the witness down to the specific object of the questioner’s inquiry. Id. at 360, 93 S.Ct. at 600-601. Count 4 fails to set out in “stark contrast” the allegedly false statements and the' objective truth. Tonelli, 577 F.2d at 195. Therefore, the conviction is reversed. See United States v. Slawik, 548 F.2d 75, 83 (3d Cir.1977). ADMISSION OF TESTIMONY CONCERNING THE POSTMARK The trial judge allowed the managing director of the International Investment Bank in Anguilla to testify, over objection, that he had received two letters purporting to be from a Mr. Templeton, one of which bore a Santa Barbara postmark. The letters were never produced at trial. Appellants raise two objections to the admission of the banker’s testimony. First, they contend that because the postmark was not authenticated at trial, the trial judge abused his discretion by admitting the testimony about it. Second, appellants argue that the postmark was an out of court statement offered to prove the truth of the matter it asserted — i.e., that the postmark was hearsay. See Fed.R.Evid. 801. They contend that since the postmark did not fall within any of the exceptions to the hearsay rule, the trial judge abused his discretion by admitting the banker’s testimony for this additional reason. Finally, appellants claim that the admission of the testimony was not harmless and constituted reversible error. We will address each of these contentions in order. First, we hold that the proponent of the banker’s testimony, the government, was hot required to authenticate the postmark as such. Fed.R.Evid. 901(a) states: The requirement of authentication" }, { "docid": "7142255", "title": "", "text": "issues charged in the indictment were, “Who is they, the people who you are talking about, the people who are doing it?” and “What caused you to believe it was Walter Harlan’s stuff?” The former question referred, however, not to ownership of the stamps but to their use. Rocca cannot be charged for lying about her knowledge concerning who the stamps belonged to merely by responding to a question about her knowledge of the stamps’ use. See United States v. Tonelli, 577 F.2d 194 (3d Cir.1978); United States v. Williams, 536 F.2d 1202 (7th Cir.1976). The question as to why Rocca believed it was “Walter Harlan’s stuff” led to nothing more significant. Portions of the testimony deleted from the indictment suggest that “stuff” most likely referred to forged registrations, not the stamps. But even assuming the jury could decide that “stuff” referred to the stamps, see United States v. Kehoe, 562 F.2d 65 (1st Cir.1977), the fact remains that the clear language of the question did not ask Rocca about her knowledge of the ownership of the stamps but as to the cause of her belief. The charge that she knew who owned the stamps and lied about her knowledge cannot, of course, be sustained by the fact that she said she did not know why she knew it was Harlan’s “stuff.” As the Third Circuit has said, in order for a charge of perjury to be sustained, the “true” paragraph must “track” the false testimony. 577 F.2d at 199. That test is obviously not met here. That the grand jury may have meant to ask Rocca about the ownership of the stamps and her knowledge of that is no cure. In Bronston v. United States, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973), the Supreme Court stated, It is the responsibility of the lawyer to probe; testimonial interrogation, and cross-examination in particular, is a prying, pressing form of inquiry. If a witness evades, it is the lawyer’s responsibility to recognize the evasion and to bring the witness back to the mark, to flush out the whole truth" }, { "docid": "6694413", "title": "", "text": "unresponsive answer.” Id. When a witness is under oath, it is the lawyer’s responsibility to recognize an unresponsive answer and to steer the witness to respond directly to the intended meaning of the question. Id. at 358-59, 93 S.Ct. at 599. The skilled attorney, not the threat of perjury, assures that the witness understands the question and responds to it. The principles underlying the Bronston decision also bar perjury convictions for arguably untrue answers to vague or ambiguous questions when there is insufficient evidence of how they were understood by the witness. United States v. Eddy, 737 F.2d 564, 567 (6th Cir.1984); United States v. Tonelli, 577 F.2d 194, 200 (3d Cir.1978). Simply, the jury cannot be allowed to guess at the witness' understanding of a clearly ambiguous question. “Especially in perjury cases, defendants may not be assumed into the penitentiary.” United States v. Brumley, 560 F.2d 1268, 1277 (5th Cir.1977). While superficially appealing as a defense, the “literal truth” argument is not applicable to the case before us. First, no claim is made that Glantz’ statement, “Absolutely not,” was true but unresponsive to the question asked before the grand jury. Unlike the defendant in Bronston, Glantz answered the question posed and did not simply make another statement not addressed to the question. Furthermore, no one argues that the question — “Did you ever tell anyone that that money was passed on to them?” — was vague or was open to several interpretations: appellant agrees with the government that “them” referred to the Migliaccios and the Capua-nos, and that “that money” referred to Farina’s $140,000 profit from the Knight Street deal. Thus, all parties agree that Glantz stated before a grand jury that he had never told anyone that the $140,000 profit received by Farina had been passed on to the Migliaccios and the Capuanos. The petit jury had to determine whether this was a lie. The issue at trial, then, was not what Glantz had said to the grand jury, but whether Glantz said, at the meeting with his fellow investors and as shown by the tape recording of" }, { "docid": "23561621", "title": "", "text": "595, 34 L.Ed.2d 568 (1973) that if the prosecutor never asks the critical question and never presses for an unequivocal answer the defendant may not be convicted of false swearing. In the words of Chief Justice Burger: Under the pressures and tensions of interrogation, it is not uncommon for the most earnest witnesses to give answers that are not entirely responsive. Sometimes the witness does not understand the question, or may in an excess of caution or apprehension read too much or too little into it. . . It is the responsibility of the lawyer to probe; testimonial interrogation, and cross-examination in particular, is a probing, prying, pressing form of inquiry. If a witness evades, it is the. lawyer’s responsibility to recognize the evasion and to bring the witness back to the mark, to flush out the whole truth with the tools of adversary examination. It is no answer to say that here the jury found that petitioner intended to mislead his examiner. A jury should not be permitted to engage in conjecture whether an unresponsive answer, true and complete on its face, was intended to mislead or divert the examiner; the state of mind of the witness is relevant only to the extent that it bears on whether “he does not believe [his answer] to be true.” To hold otherwise would be to inject a new and confusing element into the adversary testimonial system we know. Witnesses would be unsure of the extent of their responsibility for the misunderstandings and inadequacies of examiners, and might well fear having that responsibility tested by a jury under the vague rubric of “intent to mislead” or “perjury by implication.” 409 U.S. at 358-59, 93 S.Ct. at 600. What the Chief Justice said in the context of an adversarial proceeding, in which lawyers for other interested parties participated and might have eliminated the ambiguities, applies a fortiori to uncounseled appearances before a grand jury. Indeed the grand jury context adds a new element of speculation to the petit jury’s role if, as in this case, it is permitted to resolve not only the" }, { "docid": "6694412", "title": "", "text": "The Court offered several sound reasons for this strict rule. It noted that our adversary system relies heavily on witnesses testifying freely and without fear of retribution from the legal establishment. The Court feared that, if a jury were permitted to conjecture whether a true but unresponsive answer was intended to mislead, “[witnesses would be unsure of the extent of their responsibility for the misunderstandings and inadequacies of examiners, and might well fear having that responsibility tested by a jury under the vague rubric of ‘intent to mislead’ or ‘perjury by implication.’ ” Id. at 359, 93 S.Ct. at 600. Even the most honest and well-intentioned witnesses, the Court stated, may occasionally give an unresponsive answer due to a misunderstanding of the meaning or scope of the question. Id. at 358, 93 S.Ct. at 600. The Court reasoned, then, that a penury prosecution is an unnecessarily “drastic sanction ... to cure a testimonial mishap that could readily have been reached with a single additional question by counsel alert ... to the incongruity of [the witness’] unresponsive answer.” Id. When a witness is under oath, it is the lawyer’s responsibility to recognize an unresponsive answer and to steer the witness to respond directly to the intended meaning of the question. Id. at 358-59, 93 S.Ct. at 599. The skilled attorney, not the threat of perjury, assures that the witness understands the question and responds to it. The principles underlying the Bronston decision also bar perjury convictions for arguably untrue answers to vague or ambiguous questions when there is insufficient evidence of how they were understood by the witness. United States v. Eddy, 737 F.2d 564, 567 (6th Cir.1984); United States v. Tonelli, 577 F.2d 194, 200 (3d Cir.1978). Simply, the jury cannot be allowed to guess at the witness' understanding of a clearly ambiguous question. “Especially in perjury cases, defendants may not be assumed into the penitentiary.” United States v. Brumley, 560 F.2d 1268, 1277 (5th Cir.1977). While superficially appealing as a defense, the “literal truth” argument is not applicable to the case before us. First, no claim is made that" }, { "docid": "10898098", "title": "", "text": "adduced at trial has shown in fact that was not an actual OSU diploma and those are not actual copies of OSU transcripts. I obviously concede that. But the questions were asked at trial, the questions were asked at trial based upon the best available information to the United States at the time. I don’t think that the fact that the evidence has developed that those were not an actual diploma and not an actual transcript is enough to support a motion for a judgment of acquittal. Thus, it is undisputed that Eddy did not submit an “official” Ohio State University diploma and a genuine university transcript during his meetings with naval recruiters. Hence, Eddy’s negative responses to the prosecutor’s questions were the literal truth “in light of the meaning that he, not his interrogator, attributed to the questions and answers,” United States v. Cook, 497 F.2d at 773 (emphasis in original), and therefore, could not support a perjury conviction. Bronston, 409 U.S. at 359, 93 S.Ct. at 600; see also United States v. Wall, 371 F.2d at 400 (“[T]he essence of the crime of perjury ... is the belief of the witness concerning the veracity of his testimony.”) It is no answer to argue that Eddy’s testimony was unresponsive or intentionally misleading. An “intent to mislead” or “perjury by implication” is insufficient to support a perjury conviction. Bronston, 409 U.S. at 359, 93 S.Ct. at 600; United States v. Slawik, 548 F.2d 75, 83-84 (3d Cir.1977). “[I]f the prosecutor never asks the critical question and never presses for an unequivocal answer the defendant may not be convicted of false swearing.” Slawik, supra, 548 F.2d at 84. Nor can Eddy’s conviction be upheld because, as the United States contends, Eddy understood, or should have understood, the import behind the prosecutor’s questions. “Precise questioning is imperative as a predicate for the offense of perjury.” Bronston, 409 U.S. at 362, 93 S.Ct. at 602. If the Assistant United States Attorney sought to inquire about Eddy’s submitting false documents, the burden was on the United States, and not the witness, to be concise" }, { "docid": "10898099", "title": "", "text": "371 F.2d at 400 (“[T]he essence of the crime of perjury ... is the belief of the witness concerning the veracity of his testimony.”) It is no answer to argue that Eddy’s testimony was unresponsive or intentionally misleading. An “intent to mislead” or “perjury by implication” is insufficient to support a perjury conviction. Bronston, 409 U.S. at 359, 93 S.Ct. at 600; United States v. Slawik, 548 F.2d 75, 83-84 (3d Cir.1977). “[I]f the prosecutor never asks the critical question and never presses for an unequivocal answer the defendant may not be convicted of false swearing.” Slawik, supra, 548 F.2d at 84. Nor can Eddy’s conviction be upheld because, as the United States contends, Eddy understood, or should have understood, the import behind the prosecutor’s questions. “Precise questioning is imperative as a predicate for the offense of perjury.” Bronston, 409 U.S. at 362, 93 S.Ct. at 602. If the Assistant United States Attorney sought to inquire about Eddy’s submitting false documents, the burden was on the United States, and not the witness, to be concise and to the point. The perjury statute was not intended to extend situations where “a wily witness succeeds in derailing the questioner — so long as the witness speaks the literal truth. The burden is on the questioner to pin the witness down to the specific object of the questioner’s inquiry.” Bronston, 409 U.S. at 360, 93 S.Ct. at 601. We also reject the argument that, when a witness is confronted with ambiguous questions, it is for the jury to decide whether the witness has committed perjury. Bronston discredited this type of jury conjecture which is now contended should be permissible. Bronston, 409 U.S. at 359, 93 S.Ct. at 600. A contrary rule would allow a jury to infer from a witness’ unresponsive answer to a vague question that the witness knew his testimony to be false. In expressly rejecting this, Bronston, 409 U.S. at 358, 93 S.Ct. at 600, the Court stated, Under the pressures and tensions of interrogation, it is not uncommon for the most earnest witnesses to give answers that are not" }, { "docid": "22891446", "title": "", "text": "is the lawyer’s responsibility to recognize the evasion and to bring the witness back to the mark, to flush out the whole truth with the tools of adversary examination. 409 U.S. at 358-59, 93 S.Ct. 595. In United States v. Serafini, 167 F.3d 812 (3d Cir.1999), we heeded this guidance and held that a perjury conviction under 18 U.S.C. § 1623 cannot be predicated on a response to a “fundamentally ambiguous” question. 167 F.3d at 820; see id. at 824 (“[L]ack of specificity [i]s a form of imprecision whose ‘consequences must be laid at the table of the questioner, not the questioned.’ ” (ellipses omitted) (quoting United States v. Sainz, 772 F.2d 559, 563 (9th Cir.1985))). While our opinion in Serafini speaks to whether a question is so “fundamentally ambiguous” that it cannot be submitted to the jury as the basis for a finding of perjury, it compels us to consider whether, in the context of § 3C1.1, a question is sufficiently precise to support the factual findings made by the District Court. As the Tenth Circuit has stated: “The purpose of the rule of fundamental ambiguity is three-fold, namely, to (1) preclude convictions grounded on surmise or conjecture; (2) prevent witnesses from unfairly bearing the risks of inadequate examination; and (3) encourage witnesses to testify (or at least not discourage them from doing so).” United States v. Farmer, 137 F.3d 1265, 1269 (10th Cir.1998). This threefold purpose echoes the precepts that guide our application of a sentencing enhancement for perjury: namely, that § 3C1.1 “is not intended to punish a defendant for the exercise of constitutional right,” and that we must be “cognizant that inaccurate testimony or statements sometimes may result from confusion, mistake, or faulty memory and, thus, not all inaccurate testimony or statements necessarily reflect a willful attempt to obstruct justice.” U.S.S.G. § 3C1.1 cmt. n. 2 (2003). Just as these concerns require district courts, in addressing a defendant’s objections to a sentencing enhancement for perjury, to “make independent findings necessary to establish a willful impediment or obstruction of justice, or an attempt to do the same,”" }, { "docid": "10898101", "title": "", "text": "entirely responsive. Sometimes the witness does not understand the question, or may in an excess of caution or apprehension read too much or too little into it____ It is the responsibility of the lawyer to probe; testimonial interrogation, and cross-examination in particular, is a probing, prying, pressing form of inquiry. If a witness evades, it is the lawyer’s responsibility to recognize the evasion and to bring the witness back to the mark, to flush out the whole truth with the tools of adversary examination. See also United States v. Tonelli, 577 F.2d at 200; United States v. Slawik, supra, 548 F.2d at 84 (petit jury should not be permitted “to resolve not only ambiguity of the interrogator’s question and the defendant’s response, but also the ambiguity of the grand jury’s understanding of both question and response.”) Similarly, Eddy’s conviction under Count II of the indictment must also be reversed and the indictment dismissed. The testimony charged to have been perjured, and used as the basis for Count II also occurred during the suppression hearing during Eddy’s original trial. At one point Eddy was asked if he had applied for staff privileges at a hospital, would he remember doing so. Eddy responded in the affirmative. The following question was then asked: PROSECUTOR: In that case, I would ask you the question again. Are you the same Terrance Alan Eddy who attempted to gain staff privileges at the Putnam County Community Hospital in Palatka, Florida, and in doing so showed credentials from the Ohio State University and a certificate from the Board of Medical Examiners from the State of Florida indicating that you were licensed to practice medicine in that state? And I think we can take that to mean you represented yourself as a physician. Did you do that? EDDY: Like I said, I don’t remember going there. I don’t remember doing this action. No, sir. The indictment charges that Eddy’s response was false because he “did make [an] application for staff privileges at the Putnam Community Hospital, Palatka, Florida, and in so doing, represented himself to be a physician, showed" }, { "docid": "10898104", "title": "", "text": "answer was obscure, and may have misled the casual observer. Nevertheless, it was the Assistant United States Attorney’s “responsibility to recognize [Eddy’s] evasion and bring him back to the mark, to flush out the whole truth with the tools of adversary examination.” Bronston, 409 U.S. at 359, 93 S.Ct. at 600. This was not done. Here, the crucial question was hardly precise. In fact, it was a multiple question with at least four separate inquiries. Understandably, Eddy’s answer reflected the same imprecision. “A charge of perjury, however, is not a substitute for careful questioning on the part of a prosecutor.” United States v. Tonelli, supra, 577 F.2d at 198. In a perjury case, the defendant “may not be assumed into the penitentiary.” United States v. Brumley, supra, 560 F.2d at 1277. Any reading of the charges found in Count II of the indictment leads one to believe that it has failed to set forth with sufficient clarity the precise falsehood alleged, the factual basis of that falsehood and the objective truth in “stark contrast so that the claim of falsity is clear to all who read the charge.” Tonelli, 577 F.2d at 195. The response to this argument is that as to both Count I and II, the holdings in Bronston and United States v. Wall, supra, are not applicable because neither dealt “with the situation where a defendant has given a ‘yes or no’ answer, the truth of which can be ascertained only in the context of the question posed.” See United States v. Cuesta, 597 F.2d 903, 920 (5th Cir.), cert. denied, 444 U.S. 964, 100 S.Ct. 451, 62 L.Ed.2d 377 (1979); United States v. Kehoe, 562 F.2d 65, 68-69 (1st Cir.1977); United States v. Chapin, 515 F.2d 1274, 1280 (D.C.Cir.1975). We disagree. Although the facts in Bronston reveal that Bronston’s conviction was based upon a response that was not a “yes or no” answer, the decision in no way indicates its reasoning is inapplicable to situations where a defendant’s “yes or no” responses are literally true but unresponsive to the examiner’s question. In United States v. Abrams," }, { "docid": "23561620", "title": "", "text": "of the materiality of those falsehoods. To hold otherwise would permit the trial jury to inject its inferences into the grand jury’s indictment, and would allow defendants to be convicted for immaterial falsehoods or for “intent to mislead” or “perjury by implication”— which Bronston specifically prohibited. We emphasize that the government knew, in this case, the precise content of each of Slawik’s statements to Austin. It was free, in its evident determination to trap appellant in perjury, to ask more pointed questions. And it was free, in its indictment and its bill of particulars to set forth with crystal clarity its allegations of falsehood and materiality. This court cannot and will not affirm a criminal conviction on so nebulous a legal and factual matrix. The district court denied Slawik’s motion to dismiss the indictment on Count 7. The motion should have been granted. We are reinforced in our determination that the conviction on Count 7 may not stand by the holding of the Supreme Court in Bronston v. United States, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973) that if the prosecutor never asks the critical question and never presses for an unequivocal answer the defendant may not be convicted of false swearing. In the words of Chief Justice Burger: Under the pressures and tensions of interrogation, it is not uncommon for the most earnest witnesses to give answers that are not entirely responsive. Sometimes the witness does not understand the question, or may in an excess of caution or apprehension read too much or too little into it. . . It is the responsibility of the lawyer to probe; testimonial interrogation, and cross-examination in particular, is a probing, prying, pressing form of inquiry. If a witness evades, it is the. lawyer’s responsibility to recognize the evasion and to bring the witness back to the mark, to flush out the whole truth with the tools of adversary examination. It is no answer to say that here the jury found that petitioner intended to mislead his examiner. A jury should not be permitted to engage in conjecture whether an" }, { "docid": "7711430", "title": "", "text": "question). The government’s argument is that Shotts ignores the “context” of his testimony. He was, “in fact,” the owner even if he didn’t own the stock. He had told others he “owned” the business. When asked before the grand jury if he owned a bail bond business, “he knew ... what was meant by the question.” No authority is cited. A perjury conviction must rest on the utterance by the accused of a false statement; it may not stand on a particular interpretation that the questioner places upon an answer. Lighte, 782 F.2d at 374 (citing Bronston, 409 U.S. at 360, 93 S.Ct. 595). The government cannot require Shotts to interpret its question in a way that is contrary to the law of Alabama, and he may not be convicted of perjury if he does not. Bron-ston expressly places on the questioner the burden of pinning the witness down to the specific object of the inquiry. Id. As then Chief Justice Burger wrote, “Precise questioning is imperative as a predicate for the offense of perjury.” 409 U.S. at 362, 93 S.Ct. 595. “If a witness evades, it is the lawyer’s responsibility to recognize the evasion and to bring the witness back to the mark, to flush out the whole truth with the tools of adversary examination.” Id. Any “special problems arising from the literally true but unresponsive answer are to be remedied through the ‘questioner’s acuity’ and not by a federal perjury prosecution.” Bronston, 409 U.S. at 362, 93 S.Ct. 595. Furthermore, the prosecutor’s purpose must be to obtain the truth. Perjury, of course, thwarts that proper purpose. It must not be the prosecutor’s purpose, however, to obtain perjury, thus avoiding more precise questions which might rectify the apparent perjury. Under these circumstances, we reverse Shotts’ conviction for making a false statement to the grand jury. Even if Shotts’ answer was evasive, nonresponsive, intentionally misleading and arguably false, it was literally true and cannot support a conviction under Section 1623. IV. Shotts appeals his conviction on Count 24 of the indictment which charges that he violated 18 U.S.C. § 1512(b)(3)." } ]

[ { "docid": "18483302", "title": "", "text": "error” review, as we have set it forth, conflicts with this Court's interpretation of the “plain error” rule. See Fed. Rule Crim. Proc. 52(b). II Rule 52(b) permits an appellate court to recognize a “plain error that affects substantial rights,” even if the claim of error was “not brought” to the district court's “attention.” Lower courts, of course, must apply the Rule as this Court has interpreted it. And the cases that set forth our interpretation hold that an appellate court may, in its discretion, correct an error not raised at trial only where the appellant demonstrates that (1) there is an “error”; (2) the error is “clear or obvious, rather than subject to reasonable dispute”; (3) the error “affected the appellant's substantial rights, which in the ordinary case means” it “affected the outcome of the district court proceedings”; and (4) “the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Puckett v. United States, 556 U. S. 129, 135 (2009) (internal quotation marks omitted); see also United States v. Olano, 507 U. S. 725, 731-737 (1993); Johnson v. United States, 520 U. S. 461, 466-467 (1997); United States v. Cotton, 535 U. S. 625, 631-632 (2002). In our view, the Second Circuit’s standard is inconsistent with the third and the fourth criteria set forth in these cases. The third criterion specifies that a “plain error” must “affec[t]” the appellant’s “substantial rights.” In the ordinary case, to meet this standard an error must be “prejudicial,” which means that there must be a reasonable probability that the error affected the outcome of the trial. Olano, supra, at 734-735 (stating that, to satisfy the third criterion of Rule 52(b), a defendant must “normally” demonstrate that the alleged error was not “harmless”); see also United States v. Dominguez Benitez, 542 U. S. 74, 83 (2004). The Court of Appeals, however, would notice a “plain error” and set aside a conviction whenever there exists “any possibility, no matter how unlikely, that the jury could have convicted based exclusively on pre-enactment conduct.” 538 F. 3d, at 102. This standard is irreconcilable with" } ]

[ { "docid": "22041255", "title": "", "text": "ruling on the fourth prong gives en banc validation to those panel opinions that take an approach to plain-error review that is “generous” and “permissive” and that fail to exact the requirement that an error seriously affect the fairness, integrity, or public reputation of judicial proceedings. See Ellis, 564 F.3d at 378 & n. 44 (deploring the lax approach taken by this court on the fourth prong). A. The Supreme Court’s modern four-prong approach to plain-error review, based in Federal Rule of Criminal Procedure 52(b), was first articulated in Olano, but the standard guiding appellate courts as to when to exercise discretion to overturn forfeited error finds its origins in United States v. Atkinson, 297 U.S. 157, 56 S.Ct. 391, 80 L.Ed. 555 (1936). Since Atkinson, appellate courts have been allowed to exercise their discretion under Rule 52(b) if errors “seriously affect the fair ness, integrity, or public reputation of judicial proceedings.” Id. at 160, 56 S.Ct. 391. What is more, since Atkinson, the Supreme Court has emphasized that a court of appeals should overturn a district court on plain-error review only in “exceptional circumstances.” Id. The circuits should correct only “particularly egregious errors,” and this power to correct should be “used sparingly.” United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (citing United States v. Frady, 456 U.S. 152, 163 & n. 14, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)). This court has only a “limited” and “strictly circumscribed” power to correct forfeited errors. Olano, 507 U.S. at 735-36, 113 S.Ct. 1770; Puckett, 556 U.S. at 134, 129 S.Ct. 1423. Defendants should be granted relief under plain-error review only “rarely,” United States v. Dominguez Benitez, 542 U.S. 74, 83 n. 9, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004), because “[mjeeting all four prongs is difficult, as it should be,” Puckett, 556 U.S. at 135, 129 S.Ct. 1423 (citation and internal quotation marks omitted). Our sister circuits have appropriately echoed the Supreme Court’s restrictive approach to plain-error review. In the First Circuit, “only the clearest and most serious of forfeited errors should be corrected" }, { "docid": "7649906", "title": "", "text": "violated his right to counsel. Williamson did not object to the admission of the recording at trial, so our review is for plain error. Because Williamson has failed to meet the stringent requirements to justify reversal for plain error, we affirm on the issue. Under Federal Rule of Criminal Procedure 52(b) and the plain-error analysis explained by the Supreme Court in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), an appellate court may correct a forfeited error when: “(1) there is an error; (2) the error is plain; (3) the error affects substantial rights; and (4) the court determines, after examining the particulars of the case, that the error ‘seriously affeet[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” United States v. Wilkinson, 137 F.3d 214, 223 (4th Cir. 1998) (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770). “Meeting all four prongs is difficult, ‘as it should be.’ ” Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83 n. 9, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)). “[A]n error is plain when the law at the time is settled.” United States v. Godwin, 272 F.3d 659, 679 (4th Cir.2001). To show that a plain error affected his substantial rights, the accused must demonstrate that “the error actually affected the outcome of the proceedings.” Id. at 679-80. As a practical matter, this means that the accused “must establish ‘that the jury actually convicted’ [him] based upon the trial error.” Id. at 680 (quoting United States v. Hastings, 134 F.3d 235, 240 (4th Cir.1998)). “It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice.” Olano, 507 U.S. at 734, 113 S.Ct. 1770. “Where the evidence is overwhelming and a perfect trial would reach the same result, a substantial right is not affected.” Godwin, 272 F.3d at 680 (citing United States v. Moore, 11 F.3d 475, 482 (4th Cir.1993)). Even if the accused establishes the first three prongs, he must" }, { "docid": "22042763", "title": "", "text": "a defendant’s failure to object. United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). By its terms, Rule 52(b) applies only to errors that are “plain” and “affect[] substantial rights.” Fed.R.Crim.P. 52(b). In keeping with this exacting standard, the Supreme Court has identified four hurdles that must be cleared before a reviewing court can remedy a forfeited error. Puckett v. United States, — U.S. -, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009) (citing Olano, 507 U.S. at 734-36, 113 S.Ct. 1770). There must be (1). an error; (2) that is clear or obvious; and (3) affects the defendant’s substantial rights. Id. Fourth and finally, once it is shown that an error is “plain” and “affects substantial rights,” the court of appeals has the discretion to correct it but no obligation to do so. Id. (citing Olano, 507 U.S. at 736, 113 S.Ct. 1770) (emphasis in original). In fact, the Supreme Court advises that the reviewing court ought to remedy the error only if it “ ‘seriously affected the fairness, integrity or public reputation of the judicial proceedings.’ ” Olano, 507 U.S. at 735-36, 113 S.Ct. 1770 (quoting United States v. Atkinson, 297 U.S. 157, 56 S.Ct. 391, 80 L.Ed. 555 (1936)) (emphasis added). It goes without saying that meeting all four requirements “is difficult ‘as it should be.’ ” Puckett, 129 S.Ct. at 1429 (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83 n. 9, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)). Having already determined that the district court erred in accepting Trejo’s plea on the facts presented, we move to the question of whether the error was plain. Plain error is error that is “clear” or “obvious.” Olano, 507 U.S. at 734, 113 S.Ct. 1770. “At a minimum,” establishing plain error requires a showing that the “error [was] clear under current law.” Olano, 507 U.S. at 734, 113 S.Ct. 1770; United States v. Bishop, 603 F.3d 279, 280 (5th Cir.2010) (emphasis added). “Current law” is the law in place at the time of trial. United States v. Jackson, 549 F.3d 963," }, { "docid": "19508025", "title": "", "text": "The government does not argue Barthman has waived , as opposed to forfeited , his claim, which would foreclose appellate review all together. See United States v. Olano, 507 U.S. 725, 733-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ; United States v. Mariano, 729 F.3d 874, 880-81 (8th Cir. 2013). The government concedes that the district court committed procedural error when it increased Barthman's criminal-history category by assigning three additional points and that such error was prejudicial to Barthman because he was given a higher Guidelines range. However, it argues that, under plain-error review, the error was not \"plain\" and that even if it was plain this Court should not exercise its discretion to remedy the error. See Appellee's Br. 10-11; see also Olano, 507 U.S. at 734, 736, 113 S.Ct. 1770 (describing the second and fourth prongs of plain-error review). We will assume, without deciding, that Barthman forfeited his claim on appeal and review for plain error. See, e.g., United States v. Campbell, 764 F.3d 874, 878 (8th Cir. 2014) (\"[A] defendant who does not object to the district court's miscalculation of his Guidelines range may receive plain error review.\"). Plain-error review provides us with \"a limited power to correct errors that were forfeited ....\" Olano, 507 U.S. at 731, 113 S.Ct. 1770. The plain-error test is well established: First, there must be an error or defect-some sort of [d]eviation from a legal rule-that has not been intentionally relinquished or abandoned, i.e. , affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the district court proceedings. Fourth and finally, if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error-discretion which ought to be exercised only if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings. Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009)" }, { "docid": "22042789", "title": "", "text": "defect. ... Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it “affected the outcome of the district court proceedings.” Fourth and finally, if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error — discretion which ought to be exercised only if the error “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Meeting all four prongs is difficult, “as it should be.” Puckett v. United States, 556 U.S. 129, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009) (quoting Olano). This four-step test describes a single standard for plain-error review that applies equally to our review of unpreserved and unpresented errors. See Olano, 507 U.S. at 736, 113 S.Ct. 1770 (citing Silber as an example of the Court’s consistent plain-error practice). Although these general principles are settled by controlling Supreme Court precedent, it still may be helpful to clarify Olano’s significance. Prior to Olano, although our plain-error practice was in accord with Rule 52(b) and the Supreme Court’s plain-error decisions, our cases used multiple formulations to describe the plain-error inquiry. In United States v. Montemayor, for example, we stated that we will consider points of error not raised on appeal only to “ ‘prevent a miscarriage of justice.’ ” 703 F.2d 109, 114 n. 7 (5th Cir.1983). Other cases cited the language used in Atkinson and repeated in Silber, and corrected errors that “seriously affected] the fairness, integrity, or public reputation of judicial proceedings.” See, e.g., United States v. Musquiz, 445 F.2d 963, 966 (5th Cir.1971). Acknowledging the use of these and other formulations by the courts of appeals, Olano clarified that plain-error review proceeds in four discrete steps. Specifically, the Court emphasized that the “miscarriage of justice” standard quoted in our circuit and others, and the “fairness, integrity, public reputation” language used in Atkinson and Silber, are both formulations intended only to guide a reviewing court’s exercise of its discretion under the fourth" }, { "docid": "12777685", "title": "", "text": "and remand for a judgment of acquittal on those counts. B. White Bull next contends that the district court committed reversible error by admitting three pieces of prejudicial hearsay evidence. We usually review challenges to the district court’s evidentiary rulings for an abuse of discretion, reversing only if an error was not harmless. Espinosa, 585 F.3d at 430. If the admission of a contested piece of evidence was not timely objected to at trial, however, we review for plain error. United States v. Orr, 636 F.3d 944, 956-57 (8th Cir.2010). For relief under plain error review, White Bull must show (1) the district court committed an error, (2) the error is clear or obvious, and (3) the error affected his substantial rights. Puckett v. United States, 556 U.S. 129, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009). If these first three requirements are met, “the court of appeals has the discretion to remedy the error — discretion which ought to be exercised only if the error ‘seriously affects the fairness, integrity or public reputation of judicial proceedings.’ ” Id. (quoting United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). Obtaining relief under this standard of review is difficult, “as it should be.” Id. (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83 n. 9, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)). 1. White Bull first argues that the district court erred in admitting Exhibit 13, the note that S.C.G.l. wrote during her meeting with Paula Condol, because Exhibit 13 was inadmissible hearsay. Although White Bull raised an objection to the admission of Exhibit 13 in a motion in limine, the district court deferred ruling on the motion and White Bull failed to object when the exhibit was actually offered into evidence at trial. As a result, we review the admission of Exhibit 13 for plain error. See Fed.R.Crim.P. 52(b); United States v. Frokjer, 415 F.3d 865, 872 (8th Cir.2005). The Government argues that Exhibit 13 was admissible under Fed. R. Evid. 807, the “residual or ‘catch-all’ exception” to the rule prohibiting the admission" }, { "docid": "12148273", "title": "", "text": "than § 2241, or any other offense described in 18 U.S.C. § 2426(b)(1)(A). IV. The District Court erred in failing to apply the categorical approach and subsequently applying U.S.S.G. § 4B1.5. But because Dahl did not object to the application of § 4B1.5 on the grounds he asserts here, the issue is unpreserved. We must therefore decide whether it was plain error for the District Court to not apply the categorical approach. Because the error was plain, and errors such as this affect the fairness, integrity, and public reputation of judicial proceedings, we will exercise our discretion and find plain error under Federal Rule of Criminal Procedure 52(b). Under Rule 52(b), we have the discretion “to correct the forfeited error” if (1) there is an error; (2) the error is plain; and (3) the error affects substantial rights. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). If these “three prongs are satisfied, the court of appeals has the discretion to remedy the error” but our discretion “ought to be exercised only if the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’” Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (quoting Olano, 507 U.S. at 736, 113 S.Ct. 1770). For an error to be “plain,” it must be “clear or obvious rather than subject to reasonable dispute.” Puckett, 556 U.S. at 135, 129 S.Ct. 1423. The government contends that if there was an error, it was not plain because our ruling in Pavulak suggests a judge may look at underlying facts to determine whether earlier conduct would have amounted to a specified federal offense. We recognize that “a new rule of law, set forth by an appellate court, cannot automatically lead that court to consider all contrary determinations by trial courts [as] plainly erroneous.” Henderson v. United States, — U.S. -, 133 S.Ct. 1121, 1130, 185 L.Ed.2d 85 (2013). But Henderson clarified that we apply “Rule 52(b)’s words ‘plain error’ as of the time of appellate review.” Id. at 1128. Therefore, if the" }, { "docid": "2972000", "title": "", "text": "outcome of the district court proceedings”; and (4) “the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” United States v. Marcus, 560 U.S. 258, 262, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (2010) (quoting Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009)); see, e.g., United States v. Olano, 507 U.S. 725, 731-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); United States v. Cotton, 535 U.S. 625, 631-32, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). The Marcus Court emphasized that [t]he third criterion specifies that a “plain error” must “a£fec[t]” the appellant’s “substantial rights.” In the ordinary case, to meet this standard an error must be “prejudicial,” which means that there must be a reasonable probability that the error affected the outcome of the trial, Marcus, 560 U.S. at 262, 130 S.Ct. 2159 (quoting Olano, 507 U.S. at 734-35, 113 S.Ct. 1770), and that the “fourth ‘plain error’ criterion ... permits an appeals court to recognize ‘plain error’ only if the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings,’ ” Marcus, 560 U.S. at 265, 130 S.Ct. 2159 (quoting Johnson, 520 U.S. at 467, 117 S.Ct. 1544). The burden of meeting the above criteria for relief under plain-error analysis is on the defendant. See, e.g., United States v. Dominguez Benitez, 542 U.S. 74, 82, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). The government may point to parts of the record in an effort to counter any ostensible showing of prejudice the defendant may make. See, e.g., United States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). Boyland argues that, where the error a defendant raises on appeal results from a supervening Supreme Court decision, we should apply the modified version of the plain error test discussed in United States v. Viola, 35 F.3d 37, 41-43 (2d Cir. 1994) (“Viola”), abrogated on other grounds by Salinas v. United States, 522 U.S. 52, 118 S.Ct. 469, 139 L.Ed.2d 352" }, { "docid": "23012630", "title": "", "text": "the right of a meaningful allocution before pronouncing sentence. Federal Rule of Criminal Procedure 32(i)(4)(A)(ii) requires that before imposing sentence the district court must “address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence.” Engle acknowledges that his failure to object at sentencing subjects this issue to plain-error review. See United States v. Muhammad, 478 F.3d 247, 249 (4th Cir.2007) (applying plain-error review on denial of allocution claim). Under Rule 52(b) of the Federal Rules of Criminal Procedure, “[a] plain error that affects substantial rights may be considered even though it was not brought to the [district] court’s attention.” Interpreting Rule 52(b), the Supreme Court has instructed: [A]n appellate court may, in its discretion, correct an error not raised at trial only where the appellant demonstrates that (1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant’s substantial rights, which in the ordinary case means it affected the outcome of the district court proceedings; and (4) the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings. United States v. Marcus, — U.S. -, -, 130 S.Ct. 2159, 2164, 176 L.Ed.2d 1012 (2010) (internal punctuation and citation omitted). “[T]he burden of establishing entitlement to relief for plain error is on the defendant claiming it,” United States v. Dominguez Benitez, 542 U.S. 74, 82, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004), and “Meeting all four prongs is difficult, as it should be,” Puckett v. United States, 556 U.S. 129, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009) (internal punctuation and citation omitted). We conclude that Engle has failed to establish entitlement to plain-error relief. At the beginning of the sentencing hearing, the district court informed Engle that he had “a right to present a sworn or an unsworn statement before sentence is imposed.” J.A. 951. During the hearing, the court heard testimony from several witnesses, reviewed evidence presented by the parties, and resolved numerous factual and legal objections to the pre-sentence report, including sustaining three" }, { "docid": "19040510", "title": "", "text": "the defendant’s perspective) would be a remand for a hearing — duplicating the process initiated by a motion under § 2255 — and the worst that could come of it would be an affirmance observing that an empty record is fatal to the appeal. Lack of an adequate record is not the defendant’s only problem. Lack of a decision by the district judge is another. Flores never asked that judge to give him a new trial on the ground that his counsel had furnished ineffective assistance. This means that appellate review is limited by the plain-error standard of Fed.R.Crim.P. 52(b). And the Supreme Court has concluded that the plain-error standard is a demanding one. See, e.g., United States v. Marcus, 560 U.S. 258, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (2010); Puckett v. United States, 556 U.S. 129, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009); United States v. Dominguez Benitez, 542 U.S. 74, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004); United States v. Vonn, 535 U.S. 55, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The plain-error standard assigns to appellant the need to demonstrate that “(1) there is an ‘error’; (2) the error is ‘clear or obvious, rather than subject to reasonable dispute’; (3) the error ‘affected the appellant’s substantial rights, which in the ordinary case means’ it ‘affected the outcome of the district court proceedings’; and (4) ‘the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” Marcus, 560 U.S. at 262, 130 S.Ct. 2159, quoting from several other decisions. And even if the appellant establishes all of these things, reversal is discretionary: a plain error permits, but never compels, appellate correction. It is hard to understand why a defendant would assume these burdens when the alternative, a collateral attack under § 2255, entails none of them. The district court can compile a record and make findings; appellate review of the law is plenary (though review of factual" }, { "docid": "19371790", "title": "", "text": "review for cases involving “errors that were forfeited because not timely raised in district court”). The parties only disagree about whether Mr. Rosales-Miranda fully satisfies our plain-error test. . As one of our sister circuits has deftly noted, “[t]he Supreme Court has cautioned appellate courts against the ‘reflexive inclination’ to reverse unpreserved error.” United States v. Carthorne, 726 F.3d 503, 510 (4th Cir.2013) (quoting Puckett v. United States, 556 U.S. 129, 134, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009)), cert. de nied, — U.S. -, 134 S.Ct. 1326, 188 L.Ed.2d 337 (2014). “As a result, relief on plain error review is ‘difficult to get, as it should be.’ ” Id. (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83 n. 9, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)). Thus, Mr. Rosales-Miranda “[cannot] prevail unless ‘ he [can] successfully run the gauntlet created by our rigorous plain-error standard of review.” United States v. Bader, 678 F.3d 858, 894 n. 24 (10th Cir.2012) (quoting United States v. McGehee, 672 F.3d 860, 866 (10th Cir.2012)). Under this demanding standard, he must demonstrate: (1) an error, (2) that is plain, which means clear or obvious under current law, and (3) that affects substantial rights. If he satisfies these criteria, this Court may exercise discretion to correct the error if (4) it seriously affects the fairness, integrity, or public reputation of judicial proceedings. McGehee, 672 F.3d at 876 (alteration in original) (emphasis added) (quoting United States v. Cooper, 654 F.3d 1104, 1117 (10th Cir.2011)) (internal quotation marks omitted); see also United States v. Goode, 483 F.3d 676, 681 (10th Cir.2007) (noting the same requirements “[t]o obtain relief under this doctrine”). “We will not reverse a conviction for plain error unless all four prongs of the plain-error test are satisfied.” United States v. Caraway, 534 F.3d 1290, 1299 (10th Cir.2008). “[T]he plain-error standard, while difficult to overcome, serves an important goal: to balance ‘our need to encourage all trial participants to seek a fair and accurate trial the first time around against our insistence that obvious injustice be promptly redressed.’ ” United States v. Frost," }, { "docid": "400742", "title": "", "text": "that (1) there is an ‘error’; (2) the error is ‘clear or obvious, rather than subject to reasonable dispute’; (3) the error ‘affected the appellant’s substantial rights, which in the ordinary case means’ it ‘affected the outcome of the district court proceedings’; and (4) ‘the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ United States v. Marcus, — U.S. -, 130 S.Ct. 2159, 2164, 176 L.Ed.2d 1012 (2010) (quoting Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009)). “[T]he burden of establishing entitlement to relief for plain error is on the defendant claiming it____” United States v. Dominguez Benitez, 542 U.S. 74, 82, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). This assignment of the burden “enforce[s] the policies that underpin Rule 52(b) generally, to encourage timely objections and reduce wasteful reversals by demanding strenuous exertion to get relief for unpreserved error.” Id. 1. An Erroneous Restitution Order Does Not Automatically Amount to “Plain Error ” As a prefatory matter, we acknowledge that we have previously suggested, without elaboration, that a defendant’s failure to object to a restitution order in the district court “is no bar to appellate review because improperly ordered restitution constitutes an illegal sentence amounting to plain error.” United States v. Thompson, 113 F.3d 13, 15 (2d Cir.1997); see also United States v. Mortimer, 52 F.3d 429, 436 (2d Cir.1995). The rationale for this language, however, ultimately finds its root in the dicta of a since abrogated decision of the Tenth Circuit Court of Appeals, which predated Olano, the leading Supreme Court decision on plain error. See United States v. Vance, 868 F.2d 1167, 1169 (10th Cir.1989), abrogated on other grounds by Hughey v. United States, 495 U.S. 411, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990). The Supreme Court has since made clear that an appellate court may only notice an unpreserved error if all four prongs of the Olano test are satisfied. See, e.g., Marcus, 130 S.Ct. at 2164; Puckett, 556 U.S. at 135, 129 S.Ct. 1423. Therefore, while it may be true that an improper restitution" }, { "docid": "11357757", "title": "", "text": "is essentially de novo.” United States v. Cecil, 615 F.3d 678, 686 (6th Cir. 2010); see also United States v. Kimbrel, 532 F.3d 461, 465-66 (6th Cir. 2008) (“Because this argument concerns an alleged mistake of law, it makes no difference whether we review this Batson challenge for clear error ... or review it de novo. In either event,- a mistake of law genei’ally satisfies dear-error, de-novo or for that matter abuse-of-discretion review.”). When a party fails to raise an argument before the district court, the argument may generally only be reviewed for plain error on appeal. Fed. R. Crim. P. 52(b). The Supreme Court has explained that plain error review “involves four steps.” Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). “First, there must be an error or defect — some sort of ‘[deviation from a legal rule’ — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the-appellant.” Id. (alteration in original) (quoting United States v. Olano, 507 U.S. 725, 732-33, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). “Second, the legal error must be clear or obvious, rather, than subject to reasonable- dispute.” .Id. “Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it ‘affected the outcome of the district court proceedings.’” Id. (quoting Olano, 507 U.S. at 734, 113 S.Ct. 1770). “Fourth and finally, if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error — discretion which ought to be exercised only if the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” Id. (alteration in original) (quoting Olano, 507 U.S. at 736, 113 S.Ct. 1770). Here, as noted earlier, the parties disagree as to which standard of review,applies. Defendant contends that clear error or de novo review should apply — and that it does not matter which the Court chooses, because the district court committed a legal error, and “a mistake of law generally satisfies clear-error, de-novo or for that matter abuse-of-discretion review,”" }, { "docid": "22629196", "title": "", "text": "we review for plain error. Id. at 34 (citing United States v. Cotton, 535 U.S. 625, 631-32, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)). II. Plain Error The plain error doctrine “reflects a careful balancing of our need to encourage all trial participants to seek a fair and accurate trial the first time around against our insistence that obvious injustice be promptly redressed.” United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), quoted in United States v. Young, 470 U.S. 1, 15-16, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). There are four elements to the Supreme Court’s plain error doctrine. The appellant has the burden of establishing the first three: (1) there was error; (2) the error was “clear or obvious, rather than subject to reasonable dispute”; and (3) the error “affected the appellant’s substantial rights, which in the ordinary case means ... ‘it affected the outcome of the district court proceedings.’ ” Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (quoting United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)); see Cotton, 535 U.S. at 631, 122 S.Ct. 1781. “Fourth and finally, if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Puckett, 556 U.S. at 135, 129 S.Ct. 1423 (alteration in original) (quotation marks and citation omitted). The Supreme Court has admonished lower courts that “any unwarranted extension” of the plain error doctrine “would disturb the careful balance it strikes between judicial efficiency and the redress of injustice.” Id. (quotation marks and citations omitted); see also United States v. Marcus, — U.S. —, 130 S.Ct. 2159, 2164, 176 L.Ed.2d 1012 (2010) (“Lower courts, of course, must apply the Rule as this Court has interpreted it.”). There is some disagreement about the application of the plain error doctrine in the military. See United States v. Girouard, 70 M.J. 5, 11" }, { "docid": "400741", "title": "", "text": "between the victims’ losses and the defendant’s gain such that the latter can be used as a measure of the former. Accordingly, we hold that it was error for the District Court to order restitution in the amount of Zangari’s gain rather than the victims’ actual losses. However, because Zangari did not raise an objection to the restitution order before the District Court, the question remains whether this error was “plain error,” as defined by cases construing Rule 52(b), such that we may notice it and exercise our discretion to correct it. C. Though the District Court’s Error was “Plain, ” We Decline to Exercise Our Discretion to “Correct” the Error Federal Rule of Criminal Procedure 52(b) provides appellate courts with a “limited power to correct errors that were forfeited because [they were] not timely raised in [the] district court.” United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (emphasis added). The Supreme Court has recently clarified that we may exercise this discretionary power only where the appellant demonstrates that (1) there is an ‘error’; (2) the error is ‘clear or obvious, rather than subject to reasonable dispute’; (3) the error ‘affected the appellant’s substantial rights, which in the ordinary case means’ it ‘affected the outcome of the district court proceedings’; and (4) ‘the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ United States v. Marcus, — U.S. -, 130 S.Ct. 2159, 2164, 176 L.Ed.2d 1012 (2010) (quoting Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009)). “[T]he burden of establishing entitlement to relief for plain error is on the defendant claiming it____” United States v. Dominguez Benitez, 542 U.S. 74, 82, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). This assignment of the burden “enforce[s] the policies that underpin Rule 52(b) generally, to encourage timely objections and reduce wasteful reversals by demanding strenuous exertion to get relief for unpreserved error.” Id. 1. An Erroneous Restitution Order Does Not Automatically Amount to “Plain Error ” As a prefatory matter, we acknowledge that we have previously" }, { "docid": "10156648", "title": "", "text": "conclusions in denying a Section 2255 motion. United States v. Stitt, 552 F.3d 346, 350 (4th Cir. 2008). We first consider the question of law whether application of the plain error standard and the ineffective assistance of counsel standard ordinarily requires equivalent outcomes. Both the plain error standard and the ineffective assistance of counsel standard assess the effect of alleged errors committed during proceedings in the trial court. When a defendant’s lawyer is confronted with error during a judicial proceeding, he has the responsibility to object contemporaneously, calling the question to the court’s attention and preserving the issue for appellate review. See Puckett v. United States, 556 U.S. 129, 134, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009); Fed. R. Crim. P. 51(b) (addressing contemporaneous objections by counsel). Our legal system relies on advocates’ effective assistance to protect the trial process from error and to promote just outcomes for the parties at trial. See Strickland, 466 U.S. at 686-87, 104 S.Ct. 2052. If counsel fails to raise a contemporaneous objection to a potential issue or error, the authority of an appellate court to remedy that problem is “strictly circumscribed.” Puckett, 556 U.S. at 134, 129 S.Ct. 1423. A litigant failing to object to an error generally forfeits his claim to relief on account of that error. Id. at 134-35, 129 S.Ct. 1423. Federal Rule of Criminal Procedure 52(b) recognizes only a limited exception to this rule of forfeiture, allowing appellate courts to review “a plain error that affects substantial rights.” See also Puckett, 556 U.S. at 135, 129 S.Ct. 1423; United States v. Dominguez Benitez, 542 U.S. 74, 83 n.9, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) (noting plain error relief is “difficult to get, as it should be”). The plain error standard therefore reflects the view that the primary responsibility for protecting a defendant’s interests at trial lies with his attorney, not with the court. An error can be “plain” only on the basis of settled law. See Carthorne I, 726 F.3d at 516 & n.14 (noting that error is plain “if the settled law of the Supreme Court or" }, { "docid": "22307208", "title": "", "text": "question for plain error. See Fed. R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Carthorne did not object to the district court’s classification of the Virginia ABPO conviction as a crime of violence, even after the district court inquired about the issue, nor did Carthorne object to the court’s determination that he qualified as a career offender. Accordingly, we review this issue for plain error. The Supreme Court has cautioned appellate courts against the “reflexive inclination” to reverse unpreserved error. See Puckett v. United States, 556 U.S. 129, 134, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (citation omitted). As a result, relief on plain error review is “difficult to get, as it should be.” United States v. Dominguez Benitez, 542 U.S. 74, 83 n. 9, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). To establish plain error, a defendant has the burden of showing: (1) that an error was made; (2) that the error was plain; and (3) that the error affected his substantial rights. Henderson v. United States, — U.S.-, 133 S.Ct. 1121, 1126, 185 L.Ed.2d 85 (2013); Olano, 507 U.S. at 732-35, 113 S.Ct. 1770. When a defendant has established each of the above elements, the decision to correct the error remains within an appellate court’s discretion, and we have held that we will exercise that discretion only if the error “would result in a miscarriage of justice or would otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.” United States v. Whitfield, 695 F.3d 288, 303 (4th Cir.2012) (quoting United States v. Robinson, 627 F.3d 941, 954 (4th Cir.2010) (internal quotation marks omitted)). B. We therefore turn to address the first requirement for plain error, and consider whether the district court erred in determining that assault and battery of a police officer in Virginia is categorically a crime of violence within the meaning of the Guidelines’ residual clause. The Guidelines define a “crime of violence” as any state or federal offense punishable by imprisonment for a term exceeding one year, that (1) has as an element" }, { "docid": "22492621", "title": "", "text": "toes.\" United States v. Vonn, 535 U.S. 55, 73, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). Its demanding standard is meant to \"encourage timely objections and reduce wasteful reversals by demanding strenuous exertion to get relief for unpreserved error.\" United States v. Dominguez Benitez, 542 U.S. 74, 82, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). If the standard were not stringent, there would be nothing \"prevent [ing] a litigant from ' \"sandbagging\" ' the court-remaining silent about his objection and belatedly raising the error only if the case does not conclude in his favor.\" Puckett v. United States, 556 U.S. 129, 134, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). Satisfying the plain-error standard \"is difficult, 'as it should be.' \" Id., at 135, 129 S.Ct. 1423. This Court has held that Rule 52(b) is satisfied only when four requirements are met: \"(1) there is 'an error,' (2) the error is 'plain,' \" \"(3) the error 'affect[s] substantial rights,' \" and \"(4) ... 'the error \"seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.\" ' \" Henderson v. United States, 568 U.S. 266, 272, 133 S.Ct. 1121, 185 L.Ed.2d 85 (2013). The fourth requirement-the one at issue here-is discretionary. Ibid. It should \"be applied on a case-specific and fact-intensive basis.\" Puckett, supra, at 142, 129 S.Ct. 1423. And it cannot be satisfied by \"a plain error affecting substantial rights ..., without more, ... for otherwise the discretion afforded by Rule 52(b) would be illusory.\" United States v. Olano, 507 U.S. 725, 737, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Instead, \"only 'particularly egregious errors' \" will meet the fourth prong's rigorous standard. United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) ); see also United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1936) (explaining that courts should provide relief under plain-error review only in \"exceptional circumstances\"). II The Court holds that Guidelines errors will \"ordinar[ily]\" satisfy the fourth prong of plain-error" }, { "docid": "22042788", "title": "", "text": "errors are obvious, or if they otherwise seriously affect the fairness, integrity, or public reputation of the judicial proceedings”). Thus, the plain-error test has long been applied to unpreserved and unpresented errors. Moreover, in very rare instances, we have applied the plain-error standard to errors neither preserved below nor argued on appeal. See, e.g., United States v. Pineda-Ortuno, 952 F.2d 98,105 (5th Cir.1992). In United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), the Court clarified the plain-error standard and discussed the meaning of the language used in Atkinson and repeated in Silber. While maintaining that Rule 52(b) was a codification of its earlier precedents and emphasizing the relative continuity of its own plain-error practice, id. at 736,113 S.Ct. 1770, the Court explicitly took the case to standardize the plain-error test for the courts of appeals, id. at 731, 113 S.Ct. 1770. As summarized in a later case, Olano explained that plain-error review under Rule 52(b) proceeds in four steps or prongs: First, there must be an error or defect. ... Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it “affected the outcome of the district court proceedings.” Fourth and finally, if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error — discretion which ought to be exercised only if the error “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Meeting all four prongs is difficult, “as it should be.” Puckett v. United States, 556 U.S. 129, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009) (quoting Olano). This four-step test describes a single standard for plain-error review that applies equally to our review of unpreserved and unpresented errors. See Olano, 507 U.S. at 736, 113 S.Ct. 1770 (citing Silber as an example of the Court’s consistent plain-error practice). Although these general principles are settled by controlling Supreme Court precedent, it still may be helpful to clarify" }, { "docid": "2971999", "title": "", "text": "were no evidentiary or other errors. For the reasons that follow, we conclude that the “plain error” standard is not met; and we find no basis for reversal in defendant’s other contentions. A. The Plain-Error Standard The Federal Rules of Criminal Procedure allow limited review of an unpre-served error pursuant to Fed. R. Crim. P. 52(b), if it meets specific criteria. As stated by the Supreme Court, Rule 52(b) permits an appellate court to recognize a “plain error that affects substantial rights,” even if the claim of error was “not brought” to the district court’s “attention.” Lower courts, of course, must apply the Rule as this Court has interpreted it. And the cases that set forth our interpretation hold that an appellate court may, in its discretion, correct an error not raised at trial only where the appellant demonstrates that (1) there is an “error”; (2) the error is “clear or obvious, rather than subject to reasonable dispute”; (3) the error “affected the appellant’s substantial rights, which in the ordinary case means” it “affected the outcome of the district court proceedings”; and (4) “the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” United States v. Marcus, 560 U.S. 258, 262, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (2010) (quoting Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009)); see, e.g., United States v. Olano, 507 U.S. 725, 731-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); United States v. Cotton, 535 U.S. 625, 631-32, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). The Marcus Court emphasized that [t]he third criterion specifies that a “plain error” must “a£fec[t]” the appellant’s “substantial rights.” In the ordinary case, to meet this standard an error must be “prejudicial,” which means that there must be a reasonable probability that the error affected the outcome of the trial, Marcus, 560 U.S. at 262, 130 S.Ct. 2159 (quoting Olano, 507 U.S. at 734-35, 113 S.Ct. 1770), and that the “fourth ‘plain error’ criterion ... permits" } ]

[ { "docid": "15047622", "title": "", "text": "MANSFIELD, District Judge. In May 1967 the Grand Jury handed down an indictment in six counts, five of which charge that on various dates between October 18, 1966, and March 29, 1967, the defendant Mastrobuono unlawfully sold and possessed LSD in violation of Title 21 U.S.C. §§ 321 (v) (3), 331(q) (2), 360(a) (b) and 333(a), and one of which (Count 5) charges that on March 29, 1967, the defendant Tabachnikov unlawfully possessed 1,000 capsules of LSD. Tabachnikov now moves for (1) discovery and inspection, pursuant to Rule 16, F.R.Crim.P., of all statements made by him prior to and after his arrest, and of the physical evidence against him; (2) a bill of particulars pursuant to Rule 7(f), F.R.Crim.P.; (3) a severance pursuant to Rule 14, F.R.Crim.P.; and (4) enlargement of his bail limits. The Government has consented to the defendant’s inspection and copying of all statements made by him after his arrest and to allow a qualified chemist to make an analysis of available samples of the LSD involved. Except to the extent so consented to, the motion for discovery and inspection is denied in the absence of a showing of any reasons therefor. The motion for particulars, except as consented to, is likewise denied. The Government has consented to furnish the essential particulars requested with respect to the charges against the moving defendant, i. e., the time when and place where it is alleged that Tabachnikov possessed the LSD referred to in the one count in which he is named. This appears sufficient to enable him to prepare for trial, avoid surprise, and prevent a second prosecution of the same offense, which is the objective of a bill of particulars. United States v. Lebron, 222 F.2d 531 (2d Cir.), cert. denied, 350 U.S. 876, 76 S.Ct. 121, 100 L.Ed. 774 (1955); United States v. Klein, 124 F.Supp. 476 (S.D.N.Y.1954), affd., 247 F.2d 908 (2d Cir. 1957), cert. denied, 355 U.S. 924, 78 S.Ct. 365, 2 L.Ed.2d 354 (1958). The requests for the “respect” in which Tabachnikov is alleged to have possessed the drug, and whether he had it" } ]

[ { "docid": "21299497", "title": "", "text": "has been shown. See United States v. Kiamie, D.C.S.D.N.Y.1955, 18 F.R.D. 421. Question and answer statements of the defendant, unsigned, are not subject to discovery under Rule 16. United States v. Kiamie, supra, 18 F.R.D. at page 423. In Item 3 Tuminaro seeks a complete perusal of all records, papers and documents of any kind obtained by the government from any of the defendants and intended to be used at the trial. No unlimited examination of the government files is intended by Rule 16. See Bowman Dairy Co. v. United States, 1951, 341 U.S. 214, 71 S.Ct. 675, 95 L.Ed. 879. The rule refers to (1) designated books, papers, documents, etc.; and requires (2) a showing that the items sought may be material to the preparation of the defense; and (3) that the request is reasonable. The demand relates to evidence. No cause for allowing this item has been demonstrated. It is clearly an unreasonable request. Items 4, 5 and 6 of Tuminaro’s application relating to statements of witnesses with relation to the overt act designated as “8” in the Eighth Count differ in no respect from the principles controlling the statements of witnesses referred to above. The motion to inspect and analyze the alleged narcotic drugs set forth in the various counts of the indictment is granted. United States v. Cotto, D.C.S.D.N.Y., 60 Cr. 414, July 22, 1960; United States v. Lopez, D.C.S.D.N.Y., 1960, 26 F.R.D. 174; United States v. Fanfan, D.C.S.D.N.Y., C-156-192, August 23, 1958; United States v. Tirado, D.C.S.D.N.Y., 1958, 25 F.R.D. 270. This inspection and analysis must be made at the office of the government’s chemist next Thursday, November 3, 1960 at 10:00 A.M., subject to reasonable safeguards, and under the government’s supervision. The motion to inspect and copy the government’s laboratory reports as to the same alleged drugs is denied. United States v. Fanfan, supra; United States v. Fuentes, D.C.S.D.N.Y., 1958, 25 F.R.D. 278, Noonan, J. With respect to the statements of witnesses, it must be noted that, with certain exceptions to be passed upon by the court, the Assistant United States Attorney in charge" }, { "docid": "1119075", "title": "", "text": "subject to the condition that if the Government proposes to use any statement as part of its direct case at trial it shall permit inspection of such statements within a reasonable time prior to commencement of trial. The term “statement” as used in this opinion includes not only writings signed by a defendant, but also recordings or transcripts of statements or interrogations of the defendant whether in the form of notes or mechanical reproductions, provided the medium used purports to set forth, either verbatim or in substance, utterances of the defendant made at or after the time of his arrest. Defendants’ demand for a copy of the statements furnished to the Gov ernment by the bookkeeper employed by the defendants is denied for the reason that it would not constitute a statement of a defendant producible under Rule 16 (a), F.R.Crim.P., and the defendants have failed to make any showing that it is material to the preparation of their defense, as required by Rule 16(b). The defendants’ motion for production of books, records, documents or other objects seized by the Government from them or third parties is denied for the reason that che defendants again fail to make any showing of materiality to the preparation of their defense. Assuming that the Government has possession of documents belonging to the defendants, the test for disclosure under Rule 16 as recently amended is not one of proprietary interest, but of materiality to the defense. In any event the demand must be denied for the additional reason that it is not “reasonable” under Rule 16(b), since it represents a blanket request without showing with any particularity the nature of the documents and materials and their relevancy to the defense. United States v. Binstock, 37 F.R.D. 13 (S.D.N.Y.1965); United States v. Van Allen, 28 F.R.D. 329 (S.D.N.Y.1961); United States v. Borgese, 235 F.Supp. 286 (S.D.N.Y.1964). To the extent that the motion seeks internal memoranda of the Internal Revenue Service with respect to any statements of the defendants, the motion must be denied for the additional reason that Rule 16(a) is inapplicable. Such internal Government" }, { "docid": "3526032", "title": "", "text": "guilt. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Hite v. Western Maryland Railway, 217 F.2d 781 (4th Cir. 1954). If the facts are of such a nature as to support a reasonable belief of a violation of a statute, probable cause has been shown. United States v. One 1949 Pontiac Sedan, 194 F.2d 756 (7th Cir. 1952). In this case two of the arresting officers testified that in their experience as vice squad officers, narcotics were commonly found similarly wrapped in aluminum foil. Matthew Crumble admitted to Officer Randa at the time of the arrest that the substance contained in the aluminum packet was marijuana. The chief chemist for the City of Milwaukee testified as to certain tests which he ran on the seized items. These were tests prescribed in a pamphlet called Methods of Analysis for Alkaloids, Opiates and Synthetic Drugs which was published by the United States Treasury Department in November 1956 (Exhibit 3). The conclusion of the chemist was that the seized items were definitely marijuana. However, in response to a question on cross-examination, this witness was unable to say whether the suspect items were part of the plant Cannabis sativa L. Section 4761 of Title 26 of the United States Code defines contraband marijuana as all parts of the plant Cannabis sativa L. Proctors for claimants introduced no testimony of their own which showed that the items seized were not illegal contraband marijuana. If this were a criminal case where the Government bears the burden of proving its case beyond a reasonable doubt, there is no question that they failed to sustain such a burden. If this were the ordinary civil case, there might be a considerable question whether the plaintiff has met the required burden of establishing a prima facie case. However, the Government is not charged with either of the foregoing burdens. The Court is convinced and finds that the Government has met its burden of showing probable cause to institute this libel. Claimants have not shown by a preponderance of the evidence that the seized items" }, { "docid": "3402854", "title": "", "text": "for analysis. On the second day of trial, the chemist, over defendant’s objection, was permitted to state the results of his analysis. Defendant then requested a continuance ostensibly for the purpose of obtaining his own analysis of the tube’s residue. The request was denied. Defendant argues that the government’s action does not comport with the spirit of Rule 16(a)(1)(D) Fed.R.Crim.P. requiring disclosure of evidence to be used against him. The rubric that the trial court is entrusted with wide discretion in matters of discovery applies, and any error in administrating discovery rules is not reversible unless prejudicial to the substantial rights of the defendant. United States v. Bailey, 550 F.2d 1099, 1100 (8th Cir.1977), citing United States v. Cole, 453 F.2d 902, 904 (8th Cir.), cert. denied, 406 U.S. 922, 92 S.Ct. 1788, 32 L.Ed.2d 122 (1972). There was no abuse of discretion nor substantial prejudice to defendant’s rights by the trial court’s actions in admitting the tube and residue. The government’s evidence, including the tube with its residue, was always available to defendant for examination and analysis any time after its seizure, and defendant was informed of its availability to him. But defendant did not avail himself of the opportunity. The fact that the government did not deliver the exhibit to its chemist until time of trial did not hamper defendant’s ability to make an independent analysis. Fed.R.Crim.P. 16(a) does not require disclosure of prospective witnesses, and, too, defendant could have anticipated that a chemical analysis by an expert witness would be a part of the government’s case. Certainly, the identity of a particular expert witness would not be of significance. United States v. Krohn, 558 F.2d 390, 394 (8th Cir.), cert. denied, 434 U.S. 868, 98 S.Ct. 207, 54 L.Ed.2d 145 (1977). Although rules of discovery require disclosure of scientific reports, Fed.R.Crim.P. 16(a)(1)(D), the report did not exist until the first day of trial, at the earliest, and the government was prompt in providing a copy of it to defendant. So there was no unfair surprise, abuse of substantial rights, or abuse of discretion in the trial court’s" }, { "docid": "18458062", "title": "", "text": "the chemical analyses made by the government’s experts which, presumably, will constitute the basis of the prosecution. The claimant contends that he is entitled to this inspection under Rules 26, 33, and 34 of the Federal Rules of Civil Procedure, 28 U.S.C.A. In opposing the motion the libelant relies first upon the strict exclusiveness of the language used in Section 334(c) of the Act allowing a claimant a true copy of the analysis upon which the proceeding is based only where a fresh fruit or vegetable is involved and second on the theory that the libelant should not be required to disclose expert testimony or opinions of its chemists who analyzed the oil seized, particularly in the absence of the claimant’s showing of necessity or of hardship resulting from the denial. This proceeding, while commencing as a libel under the Admiralty Rules, nevertheless at this stage is an action at law and is governed by the Federal Rules of Civil Procedure. Four Hundred and Forty-Three Cans of Frozen Egg Product v. U. S., 226 U.S. 172, 183, 33 S.Ct. 50, 57 L.Ed. 174; United States v. 935 Cases Tomato Puree, 6 Cir., 136 F.2d 523; Reynal v. U. S., 5 Cir., 153 F.2d 929, 931. The claimant’s request for production and inspection of the tests and analyses made by the libelant comes within the scope of Rule 34. There is much support for claimant’s contention that the Rules of Civil Procedure governing the discovery process have been very liberally construed. 3 Moore’s Federal Practice, Sec. 34.04, Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 91 L.Ed. 451; United States v. 300 Cans of Black Raspberries, D.C., 7 F.R.D. 36, 37; Stark v. American Dredging Co., D.C., 3 F.R.D. 300. But this liberal construction of disclosure before trial has not developed without limitations. As the Supreme Court noted in Hickman v. Taylor, supra [329 U.S. 495, 67 S.Ct. 392], “ * * * discovery, like all matters of procedure, has ultimate and necessary boundaries.” And this is particularly true with reference to Rule 34 under which claimant presently seeks" }, { "docid": "672098", "title": "", "text": "appropriate, including dismissal of the charges or a declaration of mistrial. If it is determined that the prosecution possesses or is aware of evidence arguably exculpatory in nature, the Court will make an independent determination as to whether in fact the material is favorable to defendant, and if it is, will order that it be disclosed to defendant at that time. Any doubt as to the exculpatory nature of the material will be resolved in favor of disclosure. For a discussion of similar procedures utilized by other courts faced with this problem, see United States v. Cobb, 271 F.Supp. 159 (S.D.N.Y.1967), and United States v. Westmoreland, 41 F.R.D. 419 (S.D.Ind.1967). I turn now to the material which Defendants specifically request be disclosed by the Government. Paragraphs 1, 2 and 3 request all statements, memoranda and summaries of statements, recordings and transcriptions of statements, made by any person to an agent of the United States or the State of Pennsylvania in connection with the subjeet matter of the case. To the extent that these requests are for statements of Government witnesses, or prospective witnesses, F.R.Crim.P. 16(b) prohibits the disclosure except as provided by the Jencks Act, 18 U.S.C. § 3500. Under the Jencks Act, the statement of a Government witness may be obtained by the defendant only after the witness has tes^ tified on direct examination at trial. As to Defendants’ request that the Government disclose statements of persons who are not prospective witnesses, disclosure is precluded either by the “criminal work product rule” of F.R.Crim.P. 16(b), or is contingent upon a “showing of materiality to the preparation of [their] defense and that the request is reasonable.” F.R.Crim.P. 16(b). The Defendants have made no assertion of materiality other than the general contention that the statements may be favorable to their defense. If the statements are exculpatory in nature, the Defendants are protected by the Brady doctrine and the procedures outlined above. The discovery requested in Paragraphs 1, 2 and 3 of the motion is denied. See United States v. Jordan, 399 F.2d 610, 615 (2d Cir.), cert. denied, 393 U.S. 1005," }, { "docid": "3402853", "title": "", "text": "unavailing. The mere fact that the magistrate issued four warrants simultaneously based on similar affidavits does not provide evidence of lack of neutrality or detachment. The affidavits described in great detail the results of an exhaustive investigation of a conspiracy of the four individuals involved, including the defendant. The magistrate’s action was not a “mere ratification of the bare conclusions of others.” Illinois v. Gates, 462 U.S. 213, 239, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1982). It is certainly not the “unusual case” for imposition of the exclusory rule as contemplated in Leon. Leon at 918, 104 S.Ct. at 3418. II. Admission of Chemical Analysis During the search of defendant’s residence, police seized a centrifuge tube containing a residue of white powder. The police chemist determined that the powder was d,1-amphetamine. This formed a basis for the charge against defendant of possession of a controlled substance. During the first day of trial, after informing defendant of its intent to do so, the government gave the exhibit of tube and residue to the police chemist for analysis. On the second day of trial, the chemist, over defendant’s objection, was permitted to state the results of his analysis. Defendant then requested a continuance ostensibly for the purpose of obtaining his own analysis of the tube’s residue. The request was denied. Defendant argues that the government’s action does not comport with the spirit of Rule 16(a)(1)(D) Fed.R.Crim.P. requiring disclosure of evidence to be used against him. The rubric that the trial court is entrusted with wide discretion in matters of discovery applies, and any error in administrating discovery rules is not reversible unless prejudicial to the substantial rights of the defendant. United States v. Bailey, 550 F.2d 1099, 1100 (8th Cir.1977), citing United States v. Cole, 453 F.2d 902, 904 (8th Cir.), cert. denied, 406 U.S. 922, 92 S.Ct. 1788, 32 L.Ed.2d 122 (1972). There was no abuse of discretion nor substantial prejudice to defendant’s rights by the trial court’s actions in admitting the tube and residue. The government’s evidence, including the tube with its residue, was always available to defendant for" }, { "docid": "23597116", "title": "", "text": "disclose detailed laboratory findings and any records of tests with respect to the cocaine seized from Merkowitz and appellant. Following appellant’s request, the government provided the defense with two documents which stated that the substance seized from Merkowitz and the substance seized from appellant had been analyzed and found to be pure cocaine. In addition to these produced results, the substance itself was offered to the- defense. Under Rule 16, the court may order the government to inspect any relevant results or reports of scientific tests or experiments made in connection with a case. A motion made under the discovery rules is within the sound discretion of the trial court and is reviewable only for an abuse of discretion. Hemphill v. United States, 392 F.2d 45, 48 (8th Cir. 1968). The trial court did not abuse its discretion in this case. Our statement in Wolford v. United States, 401 F.2d 331, 333 (10th Cir. 1968), is fully applicable: “[I]t is not contemplated that the government shall prepare the defense in criminal cases. The procedures used were fully explored on cross-examination. The record discloses no prejudicial error in the court’s denial to Wol-ford of the ‘step-by-step’ procedures used by the government chemists . ” Indeed, appellant was acquitted of Count IV of the indictment which charged possession of cocaine with intent to distribute. V. JURY INSTRUCTIONS Appellant alleges that error was committed over his timely objection when the trial court, while instructing on intent, stated: It is reasonable to infer that a person ordinarily intends the natural and probable consequences of acts knowingly done or knowingly omitted. So, unless the contrary appears from the evidence, the jury may draw the inference that the accused intended all the consequences which one standing in like circumstances and possessing like knowledge should reasonably have expected to result from any act knowingly done or knowingly omitted by him. The clause which the defendant finds objectionable is “So, unless the contrary appears from the evidence . ” The underlined portion is objected to on the basis that it has the effect of shifting the burden of" }, { "docid": "672097", "title": "", "text": "whether any of the material is favorable to the defendant; (3) rely upon the good faith of the prosecution in its representation that it possesses no exculpatory material. The first possibility would effectively open the Government’s file to defendants in every criminal case. Whateqer might be the merits of such a contingency, it is clearly beyond the scope of discovery as now provided in F.R.Crim.P. 16. The second possibility would place an unmanageable burden upon the Court. In my view, therefore, the Court, when considering a motion for pre-trial disclosure of exculpatory material, must rely upon the Government’s assertions that it possesses no such material. However, if during trial evidence is introduced which indicates that the prosecution may possess or be aware of evidence favorable to the defendant, the Court, upon motion by the defendant, will make an in camera inspection of the Government’s file or take whatever action is necessary under the circumstances. If it is determined that the Government has failed to disclose obviously exculpatory material, the Court may impose whatever sanctions are appropriate, including dismissal of the charges or a declaration of mistrial. If it is determined that the prosecution possesses or is aware of evidence arguably exculpatory in nature, the Court will make an independent determination as to whether in fact the material is favorable to defendant, and if it is, will order that it be disclosed to defendant at that time. Any doubt as to the exculpatory nature of the material will be resolved in favor of disclosure. For a discussion of similar procedures utilized by other courts faced with this problem, see United States v. Cobb, 271 F.Supp. 159 (S.D.N.Y.1967), and United States v. Westmoreland, 41 F.R.D. 419 (S.D.Ind.1967). I turn now to the material which Defendants specifically request be disclosed by the Government. Paragraphs 1, 2 and 3 request all statements, memoranda and summaries of statements, recordings and transcriptions of statements, made by any person to an agent of the United States or the State of Pennsylvania in connection with the subjeet matter of the case. To the extent that these requests are" }, { "docid": "3402855", "title": "", "text": "examination and analysis any time after its seizure, and defendant was informed of its availability to him. But defendant did not avail himself of the opportunity. The fact that the government did not deliver the exhibit to its chemist until time of trial did not hamper defendant’s ability to make an independent analysis. Fed.R.Crim.P. 16(a) does not require disclosure of prospective witnesses, and, too, defendant could have anticipated that a chemical analysis by an expert witness would be a part of the government’s case. Certainly, the identity of a particular expert witness would not be of significance. United States v. Krohn, 558 F.2d 390, 394 (8th Cir.), cert. denied, 434 U.S. 868, 98 S.Ct. 207, 54 L.Ed.2d 145 (1977). Although rules of discovery require disclosure of scientific reports, Fed.R.Crim.P. 16(a)(1)(D), the report did not exist until the first day of trial, at the earliest, and the government was prompt in providing a copy of it to defendant. So there was no unfair surprise, abuse of substantial rights, or abuse of discretion in the trial court’s action in allowing the testimony of the police chemist. Finally, with regard to this issue, there was no abuse of the trial court’s substantial discretion in denying defendant’s mid-trial request for continuance. United States v. Pruett, 788 F.2d 1395, 1396 (8th Cir.1986); United States v. Phillips, 607 F.2d 808, 810 (8th Cir.1979). Defendant could not have been surprised by the expert witness or his testimony. III. Sufficiency of the Evidence Defendant argues that the amount of controlled substance found in the vial in his residence was so quantitatively deficient that he could not have known that the vial contained an illegal substance. Hence, argues the defendant, the government failed to establish the essential element of knowledge. The d, 1-amphetamine found in the vial in defendant’s residence was a measurable amount. That fact will support defendant’s conviction for possession of a controlled substance. United States v. Walker, 720 F.2d 517, 518-19 (8th Cir.1983); United States v. Nelson, 499 F.2d 965, 966 (8th Cir.1974). IV. Constitutionality of Sentencing Guidelines Defendant contends that the Federal Sentencing Guidelines violate" }, { "docid": "13635508", "title": "", "text": "not transcribed; (c) and Evidence which would tend to mitigate punishment in the event of a conviction. The issues being framed by the parties, the Court makes the following rulings on the Motions for Discovery and Inspection: STATEMENTS BY DEFENDANTS The Government has responded that it has no written or recorded statements or confessions from Defendants Hall and Taylor and on this basis such request is denied. The request by both of these Defendants is broad enough to include any statements made by Co-defendant Mooney, who has previously entered a Plea of Guilty to the Conspiracy Count of the Indictment in the instant case. Rule 16(a), supra, allowing a defendant to obtain copies of statements or confessions appears to specifically relate to the moving Defendant’s own statements. The moving parties have failed to support their request as to statements or confessions by Mooney with legal authority. The Courts have held that statements of co-defendants are not discoverable under Rule 16(b), supra. United States v. Randolph, 456 F.2d 132 (Third Cir. 1972), cert. den., 408 U.S. 926, 92 S.Ct. 2507, 33 L.Ed.2d 337; United States v. Mahany, 305 F.Supp. 1205 (N.D.Ill.1969); United States v. Fassler, 46 F.R.D. 43 (S.D.N.Y.1968); United States v. Westmoreland, 41 F.R.D. 419 (S.D.Ind. 1967). The request is denied as to any statements of Co-defendant Mooney. EXCULPATORY EVIDENCE The Government advises it has no evidence which could be considered exculpatory with the possible exception of statements contained in a particular tape-recorded telephone conversation which it advises it has furnished Defendants. In its Response, the Government tendered to the Court for in camera examination all reports of the investigative agency involved in this case. The Court declines to examine these reports. The situation is analogous to the matter considered in Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966) which involved grand jury testimony. The Court stated: “Trial judges ought not to be burdened with the task or the responsibility of examining sometimes voluminous grand jury testimony in order to ascertain inconsistencies with trial testimony.” Likewise, a trial judge ought not to be burdened" }, { "docid": "4279923", "title": "", "text": "the word ‘belonging’ to the point of saying that a stenographic transcript of a defendant’s words ‘belongs’ to him.” 297 F.2d at 820, supra (emphasis supplied) Furthermore, Cimino’s request for discovery fails to satisfy two additional requirements of Rule 16, Fed.R.Crim.P. The rule requires not only that the item requested belong to the defendant, but also requires the defendant to show that the item sought may be material to the preparation of the defense and that the request is reasonable. Cimino has not made even a bare allegation as to materiality, and has failed to demonstrate how this vague, scattergun request could be reasonable. His motion for discovery is denied for his failure to demonstrate a proprietary interest in the paper and for an insufficient showing as to the materiality of the paper or the reasonableness of the request. Both parties have moved for bills of particulars pursuant to Buie 7 (f), Fed.R.Crim.P. On a motion for a bill of particulars the defendant is entitled to those facts necessary to enable him to prepare his defense, to prevent surprise and to enable him to plead former jeopardy. United States v. Bentvena, 193 F. Supp. 485 (S.D.N.Y.1960); United States v. Bonanno, 177 F.Supp. 106, 119 (S.D.N.Y.1959). The fact that affording the defendant such protection may, in some cases, require some disclosure of the Government’s evidence is not a bar to the relief where the particulars demanded are, under the circumstances, necessary to the preparation of the defense. United States v. Tirado, 25 F.R.D. 270 (S.D.N.Y.1958); United States v. Fanfan, C 156-192 (S.D.N.Y.August 23, 1958); United States v. Cotto, 60 Cr. 414 (S.D.N.Y. July 22, 1960). On the other hand, the Government should not be forced unnecessarily to disclose its evidence and witnesses in advance of trial. United States v. Dilliard, 101 F.2d 829, 835 (2d Cir., 1938), cert. den. 306 U.S. 635, 59 S.Ct. 484, 83 L.Ed. 1036 (1939) ; United States v. Bentvena, supra, 193 F. Supp. 498. The danger of defendants tailoring their testimony to explain away the Government’s case, which has been disclosed in advance, is not unreal." }, { "docid": "6716481", "title": "", "text": "F.2d at 742. The defendant offers nothing to indicate that the district court’s finding was clearly erroneous. III. Jerry Clark agrees that the government’s chain of custody evidence was sufficient to track possession of the questioned bag of cocaine from the time it was seized until it was analyzed in the laboratory. He objects to the bag having been admitted as a trial exhibit and to the chemist having been allowed to testify about his identification of the cocaine because evidence did not adequately track the package from the time it left the laboratory until it was offered as a trial exhibit. The operative testimony, however, concerned the chemist’s analysis in the laboratory. There is no question that the substance he analyzed was that seized from Clark, nor is there a question about the propriety of his analysis. No motion was made by the defendant to have an independent analysis performed. Even if the district court erred in admitting the exhibit, the error was harmless. See Rule 52(a), Federal Rules of Criminal Procedure. IV. For the second time in this court, Jerry Clark questions the search and seizure of the suitcase of drugs at the airport. This is precisely the same issue he raised in the possession with intent to distribute case. See United States v. Clark, 891 F.2d 501 (4th Cir.1989). It is unclear whether one of the issue preclusion doctrines might apply on the appellate level when an issue, previously decided, is raised again before the same court, is between the same parties, and is based upon the same occurrence but arises in a different case with different essential elements. Nevertheless, we are persuaded that the same result should obtain and that the district court properly denied the motion to suppress. V. Pablo Martinez contends that during sentencing his counsel was not allowed to call and examine Calvin McLaurin about quantities of drugs. Martinez did not, however, issue a subpoena or request the government to have McLaurin at the hearing and only asked to be allowed to examine McLaurin during the sentencing hearing itself. He did not suggest" }, { "docid": "22363380", "title": "", "text": "reports as the reports of factual findings made pursuant to an investigation, the reports in this case conceivably could also be susceptible of the characterization that they are “reports setting forth (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report.” If this characterization is justified, the difficult question would be whether the chemists making the observations could be regarded as “other law enforcement personnel.” We think this phraseology must be read broadly enough to make its prohibitions against the use of government-gener ated reports in criminal cases coterminous with the analogous prohibitions contained in FRE 803(8)(C). See United States v. Smith, supra, 521 F.2d at 968-69 n.24. We would thus construe “other law enforcement personnel” to include, at the least, any officer or employee of a governmental agency which has law enforcement responsibilities. Applying such a standard to the case at bar, we easily conclude that full-time chemists of the United States Customs Service ,are “law enforcement personnel.” The cbeinist in this case was-employed by the Customs Service, a governmental agency which had clearly defined law enforcement authority in the field of illegal narcotics trafficking; the officers who actually seized the suspected contraband were employed by the Customs Service, and the unidentified substance was delivered by them to a laboratory operated by the Customs Service. The unidentified substance was then subjected to analysis by a chemist, one of whose regular functions is to test substances seized from suspected narcotics violators. Chemists at the laboratory are, without question, important participants in the prosecutorial effort. As well as analyzing substances for the express purpose of ascertaining whether the substances are contraband, and if so, participating in eventual prosecution of narcotics offenders, the chemists are also expected to be familiar with the need for establishing the whereabouts of confiscated drugs at all times from seizure until trial. Moreover, the role of the chemist typically does not terminate upon completion of the chemical analysis and submission of the resulting report but participation continues until the chemist has testified as an important prosecution witness at" }, { "docid": "18322589", "title": "", "text": "no probative value; and the third, by Duhart’s present counsel, is obviously not based upon any personal knowledge of the facts. Duhart pleaded guilty to the 1949 charge. It is argued that he would have been acquitted, if advised to stand trial and given competent representation, because (1) the 1949 indictment charged possession of narcotics only, which is not a crime; (2) no narcotics were in fact found in his possession, the chemist’s analysis showing the substance in question was Epsom Salts; and (3) in any case, the evidence was secured through an illegal search and seizure and should have been suppressed. These contentions, in so far as they are based on matters of fact, are unsupported by affidavits of probative value; indeed, in part, they are contradicted by the record. In so far as they are based on claims of law, they are erroneous. The chemist’s analysis showed a trace of cocaine hydrochloride in the substance seized. No showing was made, beyond the conclusory allegation of counsel, that the search and seizure was illegal. Indeed, it appears that a valid search warrant had been issued covering the apartment in which the narcotics were discovered. And while it is true that “mere possession” of cocaine is not an offense under the statute, 21 U.S.C.A. § 174, this statute, on which the indictment is expressly laid, places on the defendant, once possession has been shown, the burden of explaining his possession to the satisfaction of the jury. See Roviaro v. United States, 353 U.S. 53, 63, 77 S.Ct. 623, 1 L.Ed.2d 639. Even now, nothing is presented to us which suggests the existence of facts in 1949 whereby the defendant could have sustained this burden. In short, in 1949 the defendant was represented by a skilled and experienced member of the staff of the Legal Aid Society and we find in the record no basis whatever to sustain the contention that his representation was incompetent or ineffective. On the contrary, we think that his advice to Duhart, evaluated in the light of the facts of the case as now disclosed, was" }, { "docid": "4279928", "title": "", "text": "is entitled to the substance of the conversations between himself and his co-defendant. Although the authorities upon which Cimino relies, United States v. Lopez, 26 F.R.D. 174 (S.D.N.Y. 1960); United States v. Cotto, supra; United States v. Fanfan, supra; and 'United States v. Bentvena, supra; did, indeed hold that defendants were entitled to the substance of conversations, those cases are distinguishable on their facts from the instant case and do not serve as authority for Cimino’s contentions. The indictments in Bentvena, Lopez, Cotto and Fanfan alleged conversations as separate overt acts of the conspiracies charged. It was, therefore, held that where the indictment alleges conversations as overt acts, the defendants are entitled to know their substance. The instant indictment alleges only that the conspiracy was furthered by a delivery of narcotics and by two meetings between the defendants. Conversations are not alleged as overt acts herein, as they were in the Fanfan, Cotto, Lopez and Bentvena cases. The defendants’ requests for the substance of conversations, which are not alleged in the indictment, are denied. Cimino’s request I, H and J and II, H and J are similar in nature and seek information as to “whether any person involved in the transaction * * * was acting as an agent or employee of the United States or its agencies” and whether or not “the defendant John Cimino was requested to sell the narcotic drug by an agent or employee of the United States or its agencies.” The Government contends that answers to these questions would result in the revelation of the identity of a Government informer, assuming that such an informer was in fact involved in the transaction. The Government claims the identity of Government informers must be kept secret and that such secrecy is sanctioned by the so-called informer’s privilege. As authority for the proposition that he is entitled to such information, Cimino cites Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1956), and two decisions by Judge Murphy, United States v. Cottó, supra, and United States v. Fanfan, supra, both rendered without opinion. The" }, { "docid": "21299498", "title": "", "text": "designated as “8” in the Eighth Count differ in no respect from the principles controlling the statements of witnesses referred to above. The motion to inspect and analyze the alleged narcotic drugs set forth in the various counts of the indictment is granted. United States v. Cotto, D.C.S.D.N.Y., 60 Cr. 414, July 22, 1960; United States v. Lopez, D.C.S.D.N.Y., 1960, 26 F.R.D. 174; United States v. Fanfan, D.C.S.D.N.Y., C-156-192, August 23, 1958; United States v. Tirado, D.C.S.D.N.Y., 1958, 25 F.R.D. 270. This inspection and analysis must be made at the office of the government’s chemist next Thursday, November 3, 1960 at 10:00 A.M., subject to reasonable safeguards, and under the government’s supervision. The motion to inspect and copy the government’s laboratory reports as to the same alleged drugs is denied. United States v. Fanfan, supra; United States v. Fuentes, D.C.S.D.N.Y., 1958, 25 F.R.D. 278, Noonan, J. With respect to the statements of witnesses, it must be noted that, with certain exceptions to be passed upon by the court, the Assistant United States Attorney in charge of this case has already stipulated to supply copies of statements of witnesses and transcripts of their grand jury statements the day before such witnesses are called by the government. IY. Motions for Bills of Particulars The fundamental rule is that the granting or denial of a bill of particulars rests within the sound discretion of the trial court, and absent any abuse or prejudice, its ruling will not be disturbed on appeal. Johnson v. United States, 5 Cir., 1953, 207 F.2d 314, 321, certiorari denied 1954, 347 U.S. 938, 74 S.Ct. 632, 98 L.Ed. 1087; Wong Tai v. United States, 1927, 273 U.S. 77, 82, 47 S.Ct. 300, 71 L.Ed. 545. In United States v. Bonanno, D.C.S.D.N.Y.1959, 177 F.Supp. 106, 119, Judge Kaufman observed: “ * * * It is elementary that a motion for a bill of particulars is addressed to the sound discretion of the trial court. Rosen v. United States, 1896, 161 U.S. 29, 40, 16 S.Ct. 434, 480, 40 L.Ed. 606; Wong Tai v. United States, 1927, 273 U.S. 77," }, { "docid": "21299514", "title": "", "text": "as I indicated in my original opinion, allowed the substance of conversations referred to in overt acts. See United States v. Lopez, D.C.S.D.N.Y., 26 F.R.D. 174, McGohey, J.; United States v. Fanfan, D.C.S.D.N.Y., C 156-192, August 23, 1958, Murphy, J.; United States v. Tirado, D.C.S.D.N.Y., 25 F.R.D. 270, Dimock, J. In the Tirado case, supra, one of the overt acts alleged was a conversation between defendant Carmelo Tirado and John Doe, a/k/a “Pete Lopez.” In granting a bill of particulars as to said alleged conversation, Judge Dimock wrote: “With the charge of conspiracy such a difficult one to meet fairness dictates that defendant be fully apprised of the only specific charge that the law requires, the overt act. The Govern ment must give the substance of the alleged conversation.” In the Fanfan case, supra, Judge Murphy allowed a bill as to the substance of conversations alleged in overt acts. In the Lopez case, supra, Judge McGohey likewise allowed similar conversations. The mere fact that certain of the information may involve revelation of evidence is not fatal to the demand where justice, as in this instance, appears to require it. See United States v. Smith, D.C.W.D.Mo., W.D.1954, 16 F.R.D. 372, 375. If the information is allowed to certain defendants, it is probably fair to direct the government to supply such information as allowed to all defendants. Accordingly, the original disposition of the matters involved in this reargument is reaffirmed, except that as to the conversation, if any, referred to in overt act No. 11, it is determined adversely. Let the government supply the information at issue here on or before November 14, 1960. So ordered. On Motion of Defendant Di Pietro for Leave to Reargue the Motion for Severance. Defendant Di Pietro has moved for leave to reargue the motion for severance heretofore made. The motion to reargue was granted and argument was heard. The principal contention of the defendant seems to be that for some reason the plea of guilty which he made in the United States District Court of New Jersey in 1951 and which he now seeks to" }, { "docid": "13971333", "title": "", "text": "McGOHEY, District Judge. An indictment in four counts charges defendant with three substantive violations of the narcotics laws and with conspiracy to violate them. Defendant now moves for discovery and inspection, under rule 16, Fed.Rules Crim.Proc. 18 U.S. C.A. of his unsigned statement and of the narcotics here involved. He moves also under rule 7(f) for a bill of particulars. The motion to inspect defendant’s statement is denied as outside the scope of rule 16. United States v. Cohen, D.C., 15 F.R.D. 269, 272; United States v. Peltz, D.C., 18 F.R.D. 394; United States v. Kiamie, D.C., 18 F.R.D. 421; United States v. Gogel, D.C., 19 F.R.D. 107. The motion to inspect the narcotics is granted. United States v. Tirado, D.C.S.D.N.Y., 25 F.R.D. 270; United States v. Fanfan, S.D.N.Y., C 156-192. The government’s argument that defendant has no standing to make this motion unless and until he admits possession of the narcotics overlooks defendant’s right to maintain inconsistent defenses. With regard to each of the three substantive counts, the requested bill of particulars seeks seven identical items. The government has consented to give the approximate time, date and place in reply to requests 1 and 2 and that is sufficient. In response to request 5, government counsel stated on oral argument that the person to whom defendant is alleged to have sold the narcotics is a federal narcotics agent who will appear and testify at the trial. Accordingly, the government argues, it ought not be required to divulge further evidentiary matter in reply to requests 3 to 7. Request number 3 must be answered. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639; United States v. Tirado, supra. Requests numbers 4 and 6 are denied. United States v. Angelet, D.C.S.D.N.Y. 26 F.R.D. 408; United States v. Bennett, D.C.S.D.N.Y., 190 F.Supp. 181. Defendant is also entitled to answers to requests numbers 5 and 7. United States v. Wilson, D.C., 20 F.R.D. 569; United States v. Angelet, supra. As to the conspiracy count, defendant requests particulars as to eight items: 1) The date when defendant entered the conspiracy," }, { "docid": "8127281", "title": "", "text": "parties submitted requests for jury instructions. One of the defendant’s proposed instructions concerned the government’s burden of proving that the substances seized from him fell within the statutory definition of a Schedule II controlled substance. At this point, the government moved to reopen its case to call a third chemist to testify regarding the tests conducted on the seized substances by two DEA chemists who had testified previously. The court granted the government’s request to reopen but refused on the basis of the hearsay prohibition to allow the chemist to testify regarding tests conducted by the other chemists. The jury returned a guilty verdict. The defendant’s motion for judgment notwithstanding the verdict was denied, and he was sentenced to a term of twelve years incarceration, fined $25,000.00, and placed under a special probation term of ten years. We affirm the conviction. I The defendant’s primary claim concerns what is known as the “cocaine isomer” defense or strategy. According to this defense, substances exist, in theory at least, that may properly be called “cocaine” but are not controlled substances within the definition of the Drug Control Act. The Act designates as a Schedule II controlled substance: Coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances .... 21 U.S.C. § 812(c), Schedule II(a)(4) (1982). The experts appear to agree that there are eight known isomers of cocaine. See United States v. Ross, supra, at 617; United States v. Kolenda, supra, 697 F.2d at 150. There is some disagreement, however, as to the nature of these eight cocaine isomers. The defendant’s counsel explained to this court at oral argument, as we understand it, that although all eight isomers are derived from the coca leaf, only two of the isomers, L-cocaine and D-cocaine, are narcotic and come within the intended scope of the Drug Control Act. In United States v. Orzechowski, supra, however, the defense argued that D-cocaine was a synthetic substance rather than a derivative of the coca leaf and was" } ]

[ { "docid": "21565213", "title": "", "text": "filed a motion to dismiss Kraft-Egert’s case for mootness. Magistrate Elaine E. Bucklo, who heard the motion, expressly considered this issue and concluded that Kraft-Egert’s request was a claim “under 29 U.S.C. § 1132(a)(1)(B) to ‘enforce [her] rights under the plan/ and not a claim for extra-contractual relief.” Report and Recommendation at 8 (N.D.Ill. Jan. 19, 1989). Thus, she denied Connecticut General’s motion. At this point, Connecticut General could have filed a written objection in the district court disputing Magistrate Bucklo’s conclusion, but it failed to do so. See Fed.R.Civ.P. 72(b); 28 U.S.C.A. § 636(b)(1) (West Supp.1989). We have previously held that a party’s “failure to file objections [to the magistrate’s report] with the district judge waives the right to appeal all issues, both factual and legal....” Video Views, Inc. v. Studio 21, Ltd., 797 F.2d 538, 539 (7th Cir.1986); see Lockert v. Faulkner, 843 F.2d 1015, 1017 (7th Cir.1988). And Magistrate Bucklo warned the parties that [w]ritten objections to any finding of fact, conclusion of law, or the recommendation for disposition of this matter must be filed with the Honorable Nicholas J. Bua within ten (10) days after service of this Report and Recommendation. See Fed.R.Civ.P. 72(b). Failure to object mil constitute a waiver of objections on appeal. Report and Recommendation at 12 (address page) (emphasis supplied). Connecticut General’s refusal to heed this warning constitutes a waiver of its right to have this court review the magistrate’s findings. We therefore decline to do so. V. There is no question that the Plan in effect between Canteen and its employees (and their beneficiaries) authorizes reimbursement for medical services that treat illness. The administrator of Canteen’s Plan, Connecticut General, promulgated an internal compilation of guidelines to be followed in interpreting the Plan. Although these guidelines advise Connecticut General’s claim offices to deny IVF claims, they also describe infertility as an illness, which, by definition, entitles a participant to reimbursement under the Plan. Despite this entitlement, Connecticut General refused to reimburse Kraft-Egert for approved medical procedures to treat her “illness of infertility.” We conclude from these circumstances that Connecticut General arbitrarily and" } ]

[ { "docid": "5793556", "title": "", "text": "the file. This Court referred the action to the Honorable Sharon E. Grubin, United States Magistrate Judge, for preparation of a report and recommendation. On August 26,1997, Judge Grubin issued a Report and Recommendation (the “Report”) that this Court grant defendants’ motion to dismiss pursuant to Fed. R.Civ.P. 12(b)(6). According to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), 6(a) and 6(e), the parties have ten (10) days to file written objections to a report and recommendation after being served with a copy. This Court has received and considered objections from both plaintiff and defendants, reviewed the Report, and made a de novo determination, as required by 28 U.S.C. § 636(b)(1). The Court has found the Report is legally correct and proper as to the conclusions drawn therein regarding defendants’ motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), and such motion should be granted. This Court finds plaintiffs arguments-to be entirely without- merit, and therefore agrees with Magistrate Judge Grubin’s Recommen dation to deny plaintiffs request for appointment of counsel. See United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980) (“[Section 636(b)(1) ] permit[s] whatever reliance a district judge, in the exercise of sound judicial discretion, [chooses] to place on a magistrate’s proposed findings and recommendations.”). In their objections to the Report, defendants state that Judge Grubin failed to address adequately defendants’ alternate grounds for dismissal: the motions to dismiss for untimely service by plaintiff and for plaintiff’s alleged abuse of in forma pauperis status. Defendants additionally request that this Court strike allegedly scandalous and immaterial matter from the complaint and seal the file. Judge Grubin denied the foregoing requests, and this Court is in agreement with her for the following reasons. DISCUSSION I. The Motion to Dismiss for Untimely Service Regarding the issue of untimely service in violation of Fed.R.Civ.P. 4(m), defendants claim that plaintiff failed to comply with such procedure when she personally served the defendants 54 days after the 120-day period for proper service. Although plaintiff is an attorney, she never has filed an action in federal court, and claims to have relied" }, { "docid": "5445855", "title": "", "text": "to comply with Court’s August 29, 2000 order requiring a statement of disputed facts and the failure to file any record evidence in opposition to summary judgment) suggest that she may be less than vigorous in asserting and defending the interests of the members of the proposed class. Accordingly, it is RECOMMENDED that the defendants’ motion for summary judgment [Docket No. 73] filed July 17, 2000 be GRANTED. It is FURTHER RECOMMENDED that the plaintiffs amended motion for class certification [Docket No. 62] filed April 25, 2000 be DENIED. Failure to file and serve written objections to the proposed findings and recommendations in this report, pursuant to 28 U.S.C. § 636(b)(1)(B) and (e) and Local Rule 6.02, within ten days of the date of its filing shall bar an aggrieved party from a de novo de termination by the district court of issues covered in the report, and shall bar an aggrieved party from attacking the factual findings on appeal. Respectfully recommended in Orlando, Florida this 31st day of January, 2001. . By order dated February 25, 2000, Magistrate Judge James G. Glazebrook granted Plaintiff's motion for leave to file a second amended complaint. . \"Rollover” transactions are defined in the Deferred Presentment Act as follows: . The notice stated that \"[t]he matter in controversy exceeds the sum or value of $75,000.00, exclusive of interest and cost.” Docket No. 1 at 3. . The Court had previously granted this motion on June 19, 2000. Docket No. 71. On Betts' motion dated June 27, 2000 [Docket No. 72], the Court reconsidered, and vacated, its prior order. . Defendants provided a courtesy copy of its proposed findings of facts and conclusions of law to chambers, but failed to file a signed original copy with the Clerk. . The following facts are drawn verbatim (with only non-substantive editorial changes) from Advance America’s July 19, 2000 summary judgment motion at Docket No. 73 at 1-8. Individual, paragraph-by-paragraph citations are omitted. . All citations are to Betts’ August 17, 1999 deposition at Docket No. 54." }, { "docid": "3298207", "title": "", "text": "need for the class action remedy in regard to the few farms arguably damaged by the spraying. Because joinder appears practicable, no class certification is necessary for this group of claimants. For the foregoing reasons, it is RECOMMENDED that Plaintiffs’ Motion to Certify Class (Doc. 37), as supplemented (Doc. 187), be DENIED. NOTICE TO PARTIES Failure to file written objections to the proposed findings and recommendations contained in this report within ten days from the date of its service shall bar an aggrieved party from attacking the factual findings on appeal and a de novo determination by a district judge. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72; see also Fed.R.Civ.P. 6; M.D. Fla. R. 4.20. June 6th, 2001. . In arriving at this conclusion, the Court, like Judge McCoun, expresses no opinion on the merits of the Plaintiffs' claims. . Objections, page 4. . Id. . Id., pages 4 and 17. . Response, page 2. . Id., page 22. . To the extent that Judge McCoun's views as to the correctness of the rationale of Castaño differs from this Court's, see Report and Recommendation, page 671, note 21, the Court rejects it. . Report and Recommendation, page 666-67. . Id. . Response, pages 7-10. . See Y.H. Invests., Inc. v. Godales, 690 So.2d 1273, 1277 (Fla. 1997) (holding that individual’s immunity from liability did not bar jury's consideration of her fault in causing accident). . Transcript, pages 125-136. . Response, page 10. . Report and Recommendation, page 671, footnote 21. . Response, pages 5-6. . Report and Recommendation, page 667. . Response, page 29. . Report and Recommendation, page 668. . Id., page 668, note 18. . Id. . Response, page 16. . The case has since been reassigned to the Honorable Richard A. Lazzara. . Plaintiffs allege in their Second Amended Complaint that Defendant Auriga is the parent company of Defendants Cheminova A/S and Cheminova, Inc. (Doc. 169 at ¶ 2(c)). They contend that Auriga exercises dominion and control over dre subsidiaries. To date, the undersigned has found no evidence of Auriga’s involvement in the events giving rise to this" }, { "docid": "743799", "title": "", "text": "28, 1988. CONCLUSION For these reasons, I respectfully RECOMMEND that plaintiffs’ motion for class certification be GRANTED in part and DENIED in part with the denial based on Mr. Goodman’s representation of the class based on the 5000 shares he purchased for the pension plan. I shall file the original of this Report and Recommendation with the Clerk and mail copies to the plaintiffs’ counsel and the defendants’ counsel, as listed below. Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 40.D.5, General Rules of the United States District Court of New Jersey, any party may file and serve written objections to this Report and Recommendation within ten days after being served with it. Upon the expiration of that ten-day period, if no objections are filed and served, I recommend that Your Honor enter the accompanying Order. . Plaintiffs’ Memorandum of Law also refers to • an earlier series of releases which it alleges ”prime[d] the market to anticipate announcements” about the liposomes. Plaintiffs' Memorandum of Law, at 5. . These releases are described in detail in Plaintiffs’ Memorandum of Law, at 5-8. . Defendants insist that, because plaintiffs have asserted a fraud-on-the-market theory, the motion for class certification cannot be decided without analyzing the entire stock market during the proposed class period, Defendant’s Memorandum at 8, but this court should reject that proposition for two reasons. First, as Your Honor has stated, typicality for the purposes of class certification does not require the determination of the applicability of the fraud-on-the-market theory. Data Access Systems, 103 F.R.D. at 139. Second, an analysis of the entire stock market would constitute an inquiry into the merits of the plaintiffs’ case and, as is well-established by now throughout this and other federal courts, \"[a] court may not consider the merits of the plaintiffs’ case in determining the certification motion,” Data Access Systems, 103 F.R.D. at 137, (quoting Eisen v. Carlisle, 417 U.S. 156, 177-178, 94 S.Ct. 2140, 2152-2153, 40 L.Ed. 2d 732 (1974)). See also Finkel, et al. v. O'Brien, et al., No. 85-2539, slip op. at 9 (D.N.J. May 23, 1986) [1986 WL" }, { "docid": "4063315", "title": "", "text": "significance of Eldon’s supplemental registration does not bar Eldon from proceeding on its unfair competition claim. CONCLUSION The court recommends that defendants’ Motion for Partial Summary Judgment be (1) GRANTED with respect to the cancellation claims of Rubbermaid Commercial’s counterclaim; (2) GRANTED with respect to Counts I and II of Eldon’s Complaint; and (3) DENIED with respect to Counts III and IV of Eldon’s Complaint. Counsel are given ten days from the date hereof to file exceptions to this Report and Recommendation with the Honorable liana Diamond Rovner. Failure to object constitutes a waiver of the right to appeal. Respectfully submitted, (s) Joan B. Gottschall JOAN B. GOTTSCHALL United States Magistrate DATED: September 19, 1989. . The Magistrate prepared two versions of the Report and Recommendation on plaintiff s motion for a preliminary injunction. One version contains confidential information concerning market shares and sales, and has been filed under seal. The other version redacts the confidential information in the findings of fact, but does not alter the conclusions of law. The redacted version, entered July 5, 1989 (“Report I”), is attached to this opinion as Appendix A, and the page cites refer to the public version. The Report and Recommendation on defendant's motion for partial summary judgment, entered September 19, 1989 (\"Report IT'), is attached as Appendix B. . 15 U.S.C. § 1092 provides that \"[i]f ... the registrant was not entitled to register the mark at the time of his application for registration thereof, ... the registration shall be canceled____” . 15 U.S.C. § 1051 note. . Pub.L. 93-600, 88 Stat.1955. . See supra at pages 792-93. . 15 U.S.C. § 1051 note. . Before the parties briefed the retroactivity issue, the Court was prepared to adopt the Magistrate's Report and Recommendation on these counts. Eldon had argued that the Magistrate erred in her conclusion that \"lawful use” means “exclusive use” rather than “substantially exclusive use,” at least in the circumstances involved here. The Court believes that \"exclusive use,” rather than “substantially exclusive use,” was the proper inquiry before the 1988 Act. All of the applicable authority supports such" }, { "docid": "10675759", "title": "", "text": "barred fraud claims as contentions that party “perpetuated a number of fraudulent schemes in the course of the parties’ contractual relationship”); Air Products, 256 F.Supp.2d at 341 (noting that “distinction between fraud in the inducement and fraud in the performance claims with regard to the gist of the action doctrine is crucial”). Compare discussion, supra, Section V(B). VI. CONCLUSION It is recommended that the Motion to Dismiss filed by GNC be granted in part and denied in part, as summarized in Section II, supra, and that absent amendment to allege standing within twenty (20) days from the date of this Report and Recommendation, the Court also sua sponte dismiss Defendants’ counter-claim for violation of the class settlement to which they were not party. In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.1.4(B) of the Local Rules for Magistrates, the parties are allowed ten (10) days from the date of service to file objections to this Report and Recommendation. Any party opposing the objections shall have seven (7) days from the date of service of objections to respond thereto. Failure to file timely objections may constitute a waiver of any appellate rights. June 1, 2006. . See also id. at 5 (\"GNC either owes no duty to Defendants ..., or any duty owed is created by the contractual duty.... ”). . Plaintiff’s citation to Bortz v. Noon, 556 Pa. 489, 729 A.2d 555, 561 (1999) is inapposite for reasons apparent on the face of the decision. Bortz concerned an absence of a duty owed to the particular plaintiff to verify the accuracy of information produced by others and passed along by a real estate broker’s agent. In the case sub judice it is alleged that Plaintiff solicited Defendants to enter into an additional business relationship and failed to exercise reasonable care in its generation of economic information provided to induce such additional business. Bortz certainly does not stand for the proposition that a generator of business information has no duty to an expected/intended recipient — even apart from an actual or prospective contractual relationship —" }, { "docid": "11269176", "title": "", "text": "ORDER GRANTING DEFENDANT’S MOTION TO QUASH SUBPOENA; DENYING MOTION TO STRIKE OBJECTION; VACATING HEARING CHESNEY, District Judge. Before the Court is plaintiff Highfields Capital Management L.P.’s objection to and motion for de novo review of Magistrate Judge Wayne D. Brazil’s Report and Recommendation (“Report”), filed October 28, 2004, in which Magistrate Judge Brazil recommends that the Court grant defendant John Doe’s motion, filed pursuant to Rule 45(c)(3)(A) of the Federal Rules of Civil Procedure, to quash the subpoena plaintiff served on non-party Yahoo!. Defendant has filed opposition to plaintiffs objection, and included therein a motion to strike the objection on grounds of untimeliness, to which plaintiff has filed a reply. Having considered the Report, the papers filed in support of and in opposition to the objection and motion for de novo review, and the papers filed in support of and in opposition to defendant’s motion to quash, the Court deems the matter suitable for decision on the papers, VACATES the hearing scheduled for January 21, 2005, and rules as follows: 1. The deadline to file an objection to the Report is ten court days after October 28, 2004, the date of service of the Report, see Fed.R.Civ.P. 6(a), 72(b), ie., November 11, 2004, to which date three days are added to account for the service of the Report by mail, see Fed.R.Civ.P. 6(e), thus extending the deadline to November 14, 2004, to which date, because November 14, 2004 was a Sunday, one court day is added, see Fed.R.Civ.P. 6(a), thus extending the deadline to November 15, 2004. Because plaintiff filed its objection on November 15, 2004, the objection is timely. Accordingly, defendant’s motion to strike the objection is DENIED. 2. Contrary to plaintiffs argument, Magistrate Judge Brazil did not err by requiring plaintiff to show, with respect to its claims against defendant, that “there is a real evidentiary basis for believing that the defendant has engaged in wrongful conduct that has caused real harm to the interests of the plaintiff.” (See Report at 7:25 — 8:2.) Indeed, the case upon which plaintiff primarily relies, as well as the case on" }, { "docid": "5793555", "title": "", "text": "MEMORANDUM ORDER LEISURE, District Judge. Plaintiff pro se, Ann C. Barcher, brings this action against defendants New York University School of Law (“NYU”), John Sexton, as Dean and Individually,' Oscar Chase, as Vice Dean and Individually, and Norman Dorsen, as Faculty Member and Individually, under Title 42 United States Code (“U.S.C.”) §§ 2000e et seq. (“Title VII”) as well as under 28 U.S.C. §§ 1331 and 1343 and 42 -U .S.C. §§ 1981, 1983, and 1985(3). Plaintiff alleges that defendants violated Title VII by discriminating against her on the basis of gender and retaliating against her for complaining about the discrimination. Defendants move for dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted, untimely service under Fed.R.Civ.P. 4(m), and abuse of in forma pauperis status under 28 U.S.C. § 1915(e). Defendants also seek to strike allegedly immaterial, impertinent, and scandalous matter in the complaint under. Fed.R.Civ.P. 12(f), to amend the caption- so as. to strike certain named individuals, and to seal the file. This Court referred the action to the Honorable Sharon E. Grubin, United States Magistrate Judge, for preparation of a report and recommendation. On August 26,1997, Judge Grubin issued a Report and Recommendation (the “Report”) that this Court grant defendants’ motion to dismiss pursuant to Fed. R.Civ.P. 12(b)(6). According to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), 6(a) and 6(e), the parties have ten (10) days to file written objections to a report and recommendation after being served with a copy. This Court has received and considered objections from both plaintiff and defendants, reviewed the Report, and made a de novo determination, as required by 28 U.S.C. § 636(b)(1). The Court has found the Report is legally correct and proper as to the conclusions drawn therein regarding defendants’ motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), and such motion should be granted. This Court finds plaintiffs arguments-to be entirely without- merit, and therefore agrees with Magistrate Judge Grubin’s Recommen dation to deny plaintiffs request for appointment of counsel. See United States v. Raddatz, 447 U.S." }, { "docid": "648444", "title": "", "text": "(1) Bristol-Myers’ action is barred by the doctrines of waiver, laches and estoppel; (2) the complaint fails to state a cause of action; (3) the defendant’s actions were taken in good faith, with no intention to violate any laws or rules; (4) the plaintiff has failed to enforce its claimed trade dress or trademark interest; and (5) McNeil’s actions are protected by the doctrine of fair use. III. PROCEDURAL SETTING The motion for a preliminary injunction was brought on by order to show cause, signed by this Court on May 21, 1991. Pursuant to 28 U.S.C. § 636(b)(1), the matter was referred to the United States Magistrate Judge, to conduct an evidentiary hearing and to issue a Report and Recommendation. The Magistrate Judge thereafter conducted a hearing which began on June 4, 1991 and extended intermittently over a period of twelve (12) days. The testimony resulted in a transcript in excess of 2,400 pages, with more than. 16,000 pages of exhibits. On August 5, 1991, the Magistrate Judge issued his Report and Recommendation, finding that although the trade dress for EXCEDRIN PM had acquired secondary meaning, Bristol-Myers failed to demonstrate either likelihood of confusion or sufficient bad faith necessary to create a “presumption” of likelihood of confusion, and failed to show that it would suffer irreparable harm absent an injunction (RR at pp. 71, 93-94). The following Recommendation was made to the Court: “[ajfter giving serious consideration to each of the Polaroid factors and after a careful weighing of all the evidence presented, plaintiffs application under 15 U.S.C. § 1125(a) for a preliminary injunction is denied. * * # * % * Based on the foregoing discussion of the law and facts, I find that the plaintiff has failed to demonstrate a) irreparable harm, and b) either likelihood of success on the merits or sufficiently serious question going to the merits wherein the balance of the hardships tip[s] decidedly in Bristol’s favor. Accordingly, I recommend that the application for a preliminary injunction be denied” (RR at pp. 71-72, 95-96). The plaintiff thereafter filed timely objections to the Report and Recommendation" }, { "docid": "11357547", "title": "", "text": "memorandum is not manifestly unreasonable. However, given that there are at least two reasonable interpretations of what the memorandum means (its author did not testify at the hearing), and because there is no other evidence indicating that the ordinance is being applied in the manner alleged by plaintiffs, the evidence is insufficient to support the issuance of a preliminary injunction as to the First Amendment claim. The possibility that the ordinance may be interpreted and applied in a manner that violates the First Amendment does not translate into a finding that the plaintiffs have “a substantial likelihood of prevailing on the merits” of their First Amendment claim. Allied Group, supra. (D) SUMMARY With respect to each of their federal and state law challenges, the plaintiffs have failed to establish a substantial likelihood of success on the merits. For that reason, a preliminary injunction is not warranted. While this conclusion makes it unnecessary to consider the three remaining requirements for the issuance of a preliminary injunction, the court observes that the public needs served by the challenged ordinance would also make it difficult for plaintiffs to satisfy the fourth requirement, which is that the issuance of an injunction would not undermine public interests. Accordingly, and for the foregoing reasons, IT IS RECOMMENDED that plaintiffs’ motion for a preliminary injunction be DENIED. Objections Under the provisions of 28 U.S.C. section 636(B)(1)(C), and Fed.R.Civ.Proc. 72(b), the parties have ten (10) business days from receipt of this Report and Recommendation to file specific, written objections with the Clerk. Timely objections will be considered by the district judge prior to a final ruling. FAILURE TO FILE WRITTEN OBJECTIONS TO THE PROPOSED FINDINGS AND RECOMMENDATIONS CONTAINED IN THIS REPORT WITHIN TEN (10) BUSINESS DAYS FROM THE DATE OF ITS SERVICE, OR WITHIN THE TIME GRANTED PURSUANT TO FED.R.CIV.PROC. 6(B), SHALL BAR AN AGGRIEVED PARTY FROM ATTACKING THE FACTUAL FINDINGS ON APPEAL EXCEPT UPON GROUNDS OF PLAIN ERROR OR MANIFEST INJUSTICE. SEE THOMAS V. ARN, 474 U.S. 140, 106 S.CT. 466, 88 L.Ed.2d 435 (1985); CARTER V. COLLINS, 918 F.2D 1198, 1203 (5TH Cir.1990). THUS DONE AND" }, { "docid": "2580451", "title": "", "text": "is directed to ENTER final judgment in favor of defendant and intervenor-defendant, dismissing the complaint with prejudice; (6) Per the court’s sealed order of June 25, 2010, proposed l’edactions to that order were due by July 8, 2010. No proposed redactions were submitted to the court. If no proposed redactions to the court’s order of June 25, 2010 are received by August 13, 2010, the court will PUBLISH the order of June 25, 2010 in its entirety; (7) On or before August 20, 2010, counsel for the parties shall CONFER and FILE with the Clerk’s Office a redacted copy of this opinion, with any material deemed proprietary marked out and enclosed in brackets, so that a copy of this opinion can then be prepared and made available in the public record of this matter; and (8) Each party shall bear its own costs. . The parties agreed that plaintiff's motions for a temporary restraining order and a preliminary injunction could best be resolved through a decision on the merits of plaintiffs bid protest. . The first page of plaintiff’s motion is marked “34,” rather than \"1.” . On June 18, 2010, plaintiff moved to supplement the administrative record with deposition testimony of an FDIC employee. This motion, opposed by defendant and intervenor-defendant, was fully briefed by June 23, 2010 and was denied on June 25, 2010. See Order of June 25, 2010. Defendant moved to amend the record on July 1, 2010, seeking to replace black-and-white copies of certain color originals with color copies. This unopposed motion was granted the same day. See Order of July 1, 2010. . An amended solicitation was issued on or about December 11, 2009, extending the deadline for proposals until January 6, 2010. See AR at 162, 2549. The court cites primarily to the amended solicitation in this opinion. . The court notes that the FDIC evaluators used the term \"Fair” instead of \"Marginal” for an evaluation score of 64.2. AR at 172-73, 196. . The court reserves its description of post-bid submission communications between the FDIC . and offerors, much of which is" }, { "docid": "17271407", "title": "", "text": "DECISION AND ORDER LAWRENCE E. KAHN, District Judge. This matter comes before the Court following a Report-Recommendation filed on June 5, 2007 by the Honorable George H. Lowe, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and L.R. 72.3(c) of the Northern District of New York. Report-Rec. (Dkt. No. 50). After ten days from the service thereof, the Clerk has sent the entire file to the undersigned, including the objections by Roger A. Williams, which were filed on June 20, 2007. Objections (Dkt. No. 57). It is the duty of this Court to “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b). “A [district] judge... may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id. This Court has considered the objections and has undertaken a de novo review of the record and has determined that the Report-Recommendation should be approved and adopted in part. The Court fully approves and adopts Judge Lowe’s learned ruling with respect to the dismissal of Plaintiff Rayon Dawkins’s (“Plaintiff’) false arrest claim. The Court also approves and adopts the denial of Defendant Roger A. Williams’s (“Defendant”) Motion for summary judgment with respect to Plaintiffs claim, under the Fourth and Fourteenth Amendments, that Plaintiff was denied a prompt probable-cause hearing. However, the Court rejects Judge Lowe’s recommendation with respect to Plaintiffs malicious prosecution claim and grants Defendant’s Motion for summary judgment on this claim as well. The issue for this Court to decide with respect to Plaintiffs malicious prosecution claim is whether or not there was probable cause for Defendant to arrest Plaintiff for attempted second degree grand larceny. Plaintiff originally reported to the New York State Police on June 19, 2002 that his girlfriend, Nicola Disant, had been raped by Plaintiffs attorney. See Disant Statement (Dkt. No. 45, Attach.ll) at 4. Defendant arrested Plaintiff on July 19, 2002 for attempted second degree grand larceny for trying to extort from Attorney Catalano the sum of $110,000.00 in" }, { "docid": "3321404", "title": "", "text": "movant ultimately will prevail on the merits; (3) the threatened injury to the movant outweighs any harm the proposed injunction may cause the opposing party; and (4) the injunction would not be contrary to the public interest. ACLU v. Johnson, 194 F.3d 1149, 1155 (10th Cir.1999). A party seeking injunctive relief must found his effort on specific factual allegations. Longstreth v. Maynard, 961 F.2d 895, 902 (10th Cir.1992). Ultimately, because “a preliminary injunction is an extraordinary remedy,” the moving party must establish that his “right to relief [is] clear and unequivocal.” Schrier v. Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir.2005). As this court is recommending that all of Plaintiffs claims for relief be denied and Defendants’ motion to dismiss be granted, there is not a substantial likelihood Plaintiff ultimately will prevail on the merits of this case. Accordingly, Plaintiffs request for injunctive relief is properly denied at this time. As this court has determined the claims against the State Defendants are properly dismissed due to either Eleventh Amendment or sovereign immunity, it need not address the State Defendants’ arguments for dismissal on the merits. WHEREFORE, for the foregoing reasons, the court respectfully RECOMMENDS that 1. “Colorado Supreme Court and Colorado Court of Appeals’ Motion to Dismiss First Amended Complaint” (Doc. No. 30, filed June 10, 2008) be GRANTED; 2. “Defendants the United States District Court for the District of Colorado, and the Tenth Circuit Court of Appeals’ Motion to Dismiss” (Doc. No. 40, filed June 24, 2008) be GRANTED; 3. “Federal Defendant Hon. Marcia S. Krieger’s Motion to Dismiss” (Doc. No. 75, filed September 24, 2008) be GRANTED; 4. Plaintiffs “Emergency Motion for Preliminary Inunction and Other Injunctive and/or Declaratory Relief’ (Doc. No. 9, filed March 24, 2008) be DENIED; and 5. This case be dismissed in its entirety. ADVISEMENT TO THE PARTIES Within ten days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge’s proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1);" }, { "docid": "6365907", "title": "", "text": "(citing Dahlem v. Board of Educ. of Denver, 901 F.2d 1508, 1511-14 (10th Cir.1990)). Here, because the relief the court recommends can in no way be considered a final determination on the merits and because the plaintiffs have not provided support for their application, the court concludes that such an award is premature at this juncture. Accordingly, the undersigned reports and recommends that the plaintiffs’ application for attorneys’ fees be denied with leave to renew when the merits are finally determined. CONCLUSION In sum, the undersigned REPORTS and RECOMMENDS that the defendants’ motion to dismiss the federal claims on the grounds of ripeness be DENIED; but that the motion to dismiss the SEQRA claim on the grounds of standing be GRANTED. Further, because the plaintiffs have dem onstrated a substantial likelihood of success on the merits of their claims, and that they will suffer irreparable harm absent the grant of the preliminary injunction, the undersigned REPORTS and RECOMMENDS that the plaintiffs’ motion for a preliminary injunction be GRANTED. Finally, the undersigned REPORTS AND RECOMMENDS that the plaintiffs’ application for attorneys’ fees be DENIED with leave to renew upon a final determination of the merits. sj: ‡ ❖ Hí ‡ Any objections to the Report and Recommendation above must be filed with the Clerk of the Court with a copy to the undersigned within 10 days of receipt of this report. Failure to file objections within the specified time waives the right to appeal the District Court’s order. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); IUE AFL—CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health and Human Serv., 892 F.2d 15, 16 (2d Cir.1989) (per curiam). January 7,1999. . Sunrise describes the typical CCF resident as approximately 83 years old with one or more physical or mental impairments. . Under SEQRA, a positive declaration is required where a proposed action will have a significant environmental impact. If a positive declaration issues, an Environmental Impact Statement" }, { "docid": "1258701", "title": "", "text": "requirements for an exercise of that right, constituted tortious interference with Ohio’s contractual relationship with Portland, and violated federal antitrust law. At the same time, Ohio filed a motion for a preliminary injunction, seeking to prevent Sealy from closing its purchase of Portland. On December 6, the Court assigned this, as well as an earlier related case involving Sealy, to a magistrate for supervision of all pretrial matters, and for the submission of proposed findings of fact and conclusions of law with respect to the motion for a preliminary injunction. 28 U.S.C. § 636(b)(1)(A), (B). The magistrate held an evidentiary hearing on the motion for preliminary injunctive relief for six trial days, from December 13-21, 1979. During this period, Portland moved to intervene in the motion, alleging that its stockholders would be irreparably harmed if the sale were not permitted to close on January 3, 1980. Leave to intervene was granted, and Portland thereafter filed a document objecting to the attempt to enjoin the sale. At the close of the evidentiary hearing, Ohio and Sealy stipulated to an extension of the closing date until January 31, 1980, an extension which is provided for in the purchase agreement. On January 16, 1980, the magistrate issued his proposed findings of fact and conclusions of law. He concluded that there was a likelihood that Ohio would prevail on the merits of its antitrust claims, but not on its contract and tort theories. The magistrate also determined, however, that Ohio would suffer no irreparable harm if Sealy were allowed to close the sale and Ohio later prevailed on the merits. As to the balance of hardships, he found that the harm that would flow to Ohio from failing to enjoin the purchase was no greater than was the harm that would accrue to Sealy if an injunction were issued. Finally, the magistrate concluded that issuance of an injunction would not be contrary to the public interest. On the basis of these conclusions, the magistrate recognized that injunctive relief normally would fail to issue, since there was no proof of irreparable harm to the moving" }, { "docid": "11024893", "title": "", "text": "ORDER REGARDING REPORT AND RECOMMENDATION ' KOVACHEVICH, District Judge. THIS CAUSE is before the Court on a report and recommendation issued by Magistrate/Judge Charles R. Wilson on June 19, 1992. This Court specifically referred the Plaintiffs’ motion for preliminary injunction to the assigned magistrate/judge. After conducting an evidentiary hearing, the Magistrate/Judge recommended that the motion for preliminary injunction be granted in part and otherwise denied. Plaintiffs and Defendants (“the County”) filed written objections to the report and recommendation on July 2, 1992 and June 30, 1992 respectively. FACTS Plaintiffs concur in all factual findings. The County also concurs in the factual findings, except to inform the Court that the ordinance referenced in paragraph 10(d) of the findings of facts was amended, effective March 1992. The Court will address the effect of this amendment below. With the exception of the amendment pertaining to paragraph 10(b), this Court adopts the findings of facts contained in paragraphs 1-14 of the report and recommendation and incorporates them by reference. STANDARD OF REVIEW Pursuant to Rule 6.02, Rules of the United States District Court for the Middle District of Florida, the parties had ten (10) days after service to file written objections to the proposed findings and recommendations, or be barred from attacking the factual findings on appeal. Nettles v. Wainwright, 677 F.2d 404 (5th Cir.1982) (en banc). After objection, the findings of the Magistrate/Judge are entitled to be adopted unless they are found to be clearly erroneous. DISCUSSION The Magistrate/Judge properly stated that Plaintiffs must prove the following four elements, as delineated in Canal Auth. of Fla. v. Callaway, 489 F.2d 567 (5th Cir.1974) to prevail on their motion for preliminary injunction: a) a substantial likelihood that plaintiffs will prevail on the merits of the claim; b) irreparable injury unless an injunction is entered; c) the threatened injury to plaintiffs outweighs the threatened harm that an injunction may cause to the County; and d) the granting of a preliminary injunction will not be adverse to public interest. In determining whether Plaintiffs have a substantial likelihood of prevailing on the merits, the report analyzed four" }, { "docid": "4063314", "title": "", "text": "of the Trademark Law Revision Act of 1988 codifies the holding in California Cooler, effective November 1989, at Lanham Act § 27, 15 U.S.C. § 1095. See 3 Gilson, Trademark Protection and Practice, SREP-37 (Spec.Supp. 1989) (Senate Report on Trademark Law Revision Act of 1988); see also 1 Gilson, supra, 3-88 (1989). Under the amendment, the owner of a supplemental registration may prove that its mark had previously acquired secondary meaning. Id. This court agrees with California Cooler and the other cases which find that rejection of an application for Primary Registration is probative, but not conclusive, evidence of lack of secondary meaning. See, e.g., A.J. Canfield Co. v. Vess Beverages, Inc., 796 F.2d 903, 907 (7th Cir.1986). The decision maker should base its conclusion as to the existence vel non secondary meaning on the record as a whole. In re Hester Industries, Inc., 230 U.S.P.Q. 797, 798 (T.T.A.B.1986). As stated in the preceding section of this report, the record indicates that there is a triable issue on \"secondary meaning. Rubbermaid’s contention as to the significance of Eldon’s supplemental registration does not bar Eldon from proceeding on its unfair competition claim. CONCLUSION The court recommends that defendants’ Motion for Partial Summary Judgment be (1) GRANTED with respect to the cancellation claims of Rubbermaid Commercial’s counterclaim; (2) GRANTED with respect to Counts I and II of Eldon’s Complaint; and (3) DENIED with respect to Counts III and IV of Eldon’s Complaint. Counsel are given ten days from the date hereof to file exceptions to this Report and Recommendation with the Honorable liana Diamond Rovner. Failure to object constitutes a waiver of the right to appeal. Respectfully submitted, (s) Joan B. Gottschall JOAN B. GOTTSCHALL United States Magistrate DATED: September 19, 1989. . The Magistrate prepared two versions of the Report and Recommendation on plaintiff s motion for a preliminary injunction. One version contains confidential information concerning market shares and sales, and has been filed under seal. The other version redacts the confidential information in the findings of fact, but does not alter the conclusions of law. The redacted version, entered July" }, { "docid": "3298206", "title": "", "text": "by Plaintiffs, remains an arguable point. Undeniably, thousands of gallons of the product were shipped to Florida for use in this Medfly Eradication Program. A number of individuals and some property have evidenced harm which could have been caused by the aerial spraying of this product. These issues are pi'operly left for further consideration by the court on subsequent pleadings or at trial. The recommendation made herein is only that such issues are not,, at present, appropriately raised by way of a class action. As set forth herein, the proposed subclasses are poorly defined and overbroad. The medical monitoring class is not demonstrated to be appropriate or manageable. In its present configuration, the personal injury class is inappropriate by reason of a lack of predominance of common issues and a corresponding lack of superiority and manageability. Indeed, the individualized issues in such claim overwhelm any issues which might otherwise be labeled common. While the fish farm class would be considerably more manageable were it framed and constituted properly, the Plaintiffs have failed to demonstrate the need for the class action remedy in regard to the few farms arguably damaged by the spraying. Because joinder appears practicable, no class certification is necessary for this group of claimants. For the foregoing reasons, it is RECOMMENDED that Plaintiffs’ Motion to Certify Class (Doc. 37), as supplemented (Doc. 187), be DENIED. NOTICE TO PARTIES Failure to file written objections to the proposed findings and recommendations contained in this report within ten days from the date of its service shall bar an aggrieved party from attacking the factual findings on appeal and a de novo determination by a district judge. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72; see also Fed.R.Civ.P. 6; M.D. Fla. R. 4.20. June 6th, 2001. . In arriving at this conclusion, the Court, like Judge McCoun, expresses no opinion on the merits of the Plaintiffs' claims. . Objections, page 4. . Id. . Id., pages 4 and 17. . Response, page 2. . Id., page 22. . To the extent that Judge McCoun's views as to the correctness of the rationale of Castaño" }, { "docid": "11269177", "title": "", "text": "an objection to the Report is ten court days after October 28, 2004, the date of service of the Report, see Fed.R.Civ.P. 6(a), 72(b), ie., November 11, 2004, to which date three days are added to account for the service of the Report by mail, see Fed.R.Civ.P. 6(e), thus extending the deadline to November 14, 2004, to which date, because November 14, 2004 was a Sunday, one court day is added, see Fed.R.Civ.P. 6(a), thus extending the deadline to November 15, 2004. Because plaintiff filed its objection on November 15, 2004, the objection is timely. Accordingly, defendant’s motion to strike the objection is DENIED. 2. Contrary to plaintiffs argument, Magistrate Judge Brazil did not err by requiring plaintiff to show, with respect to its claims against defendant, that “there is a real evidentiary basis for believing that the defendant has engaged in wrongful conduct that has caused real harm to the interests of the plaintiff.” (See Report at 7:25 — 8:2.) Indeed, the case upon which plaintiff primarily relies, as well as the case on which the Magistrate Judge primarily relies, both require such a showing. See Sony Music Entertainment Inc. v. Does 1-40, 326 F.Supp.2d 556, 564-65 (S.D.N.Y.2004) (holding plaintiff must make “concrete showing of a prima facie claim of actionable harm”; denying motion to quash subpoena to undercover identity of doe defendants where, inter alia, plaintiff offered sufficient evidence to show it could establish prima facie claim); Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 580 (N.D.Cal.1999) (holding “plaintiff must make some showing that an act giving rise to civil liability actually occurred”; finding plaintiff entitled to conduct discovery to learn identity of defendant where plaintiff offered evidence “sufficient to demonstrate [defendants] committed an unlawful act”). 3. The Court, having reviewed the file de novo, adopts Magistrate Judge Brazil’s recommendation and, accordingly, finds that plaintiff has faded to make a sufficient showing that defendant has engaged in wrongful conduct causing harm to plaintiff. The context in which the statements were made plainly indicates the statements were, as Magistrate Judge Brazil aptly put it, “sardonic commentary.” (See Report at" }, { "docid": "6935260", "title": "", "text": "stated concerning the claims plaintiff seeks to assert against the four additional defendants. There is nothing in the motion suggesting any connection between these claims and the ones asserted in the original complaint; nor are the claims plaintiff seeks to assert against the proposed additional defendants described with sufficient specificity to permit any determination of their legal sufficiency. In the circumstances, granting leave to amend would serve no purpose except to invite another motion to dismiss. Judicial economy would be better served by denying the motion, without prejudice to plaintiffs commencing a separate action against individuals as to whom he is able to allege specific facts consistent with Rule 11, Fed.R.Civ.P., and the standards of pleading a § 1983 claim discussed in this opinion. III. Plaintiff also moves for appointment of counsel. For the reasons stated in Part I, his claim does not satisfy the threshold requirement of merit necessary for exercise of the court’s discretion to appoint counsel. See Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir.1986). The foregoing constitutes my recommendation for the disposition of this action pursuant to 28 U.S.C. § 636(b)(1)(B) and (C). Any party may serve and file written objections to this Report and Recommendation within ten days of being served with a copy as provided by Fed.R.Civ.P. 72(b) and Rule 7 of the local Rules for Proceedings before Magistrates. Dated: New York, New York April 13, 1989 . These objections were submitted after the expiration of the ten day time period following the Report, as provided under Fed.R.Civ.P. 72(b) and Rule 7 of the local Rules for Proceedings before Magistrates. The Court has nevertheless considered that submission, and conducted a de novo review of the material now before the Court. . Plaintiff did file a grievance as a result of the making of the remarks, which was denied by the Superintendent (defendant Sullivan) after a \"thorough investigation” by the Deputy Superintendent (defendant Keane) on the ground that \"the allegations of harassment cannot be substantiated.” Plaintiff appealed this determination, but the results of that appeal are not included in the papers submitted. Nothing" } ]

[ { "docid": "22320602", "title": "", "text": "apart a group of persons who are particularly likely to commit perjury” since the rule allowed an alleged participant to testify if he or she had been acquitted or was called by the prosecution. Id., at 22-23. A similar constitutional violation occurred in Chambers v. Mississippi, supra. A murder defendant called as a witness a man named McDonald, who had previously confessed to the murder. When McDonald repudiated the confession on the stand, the defendant was denied permission to examine McDonald as an adverse witness based on the State’s “ ‘voucher’ rule,” which barred parties from impeaching their own witnesses. Id., at 294. In addition, because the state hearsay rule did not include an exception for statements against penal interest, the defendant was not permitted to introduce evidence that McDonald had made self-incriminating statements to three other persons. Noting that the State had not even attempted to “defend” or “explain [the] underlying rationale” of the “voucher rule,” id., at 297, this Court held that “the exclusion of [the evidence of McDonald’s out-of-court statements], coupled with the State’s refusal to permit [the defendant] to cross-examine McDonald, denied him a trial in accord with traditional and fundamental standards of due process,” id., at 302. Another arbitrary rule was held unconstitutional in Crane v. Kentucky, supra. There, the defendant was prevented from attempting to show at trial that his confession was unreliable because of the circumstances under which it was obtained, and neither the State Supreme Court nor the prosecution “advanced any rational justification for the wholesale exclusion of this body of potentially exculpatory evidence.” Id., at 691. In Rock v. Arkansas, supra, this Court held that a rule prohibiting hypnotically refreshed testimony was unconstitutional because “[wjholesale inadmissibility of a defendant’s testimony is an arbitrary restriction on the right to testify in the absence of clear evidence by the State repudiating the validity of all post-hypnosis recollections.” Id., at 61. By contrast, in Scheffer, supra, we held that a rule excluding all polygraph evidence did not abridge the right to present a defense because the rule “serve[d] several legitimate interests in the criminal" } ]

[ { "docid": "8047760", "title": "", "text": "when the jury is presented with as much information as possible about the case.” Despite this factor’s constitutional significance with regard to statements offered by the defense, see Washington, 388 U.S. at 19, 87 S.Ct. 1920 (right to offer testimony is “in plain terms ... the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies”), and although defense counsel argued that the jury should be allowed to see the whole picture, the trial court did not consider it when determining the admissibility of the hearsay statements offered by Gray. The trial court gave no explanation for why the prosecution was accorded the benefit of this pro-admissibility factor but the defense was not. Nor can we think of any explanation for such treatment. Judge Trott, in dissent, suggests that the Roundy factual statements excluded were not analytically parallel in their content to some of the Betty Gray statements that the court admitted, but he never explains why not. We cannot perceive any pertinent difference. Why, for example, do Betty Gray’s statements that Gray was angry with Betty Gray “tend to prove that Gray was the killer,” while Roundy’s statements that Dyer threatened her life do not tend to prove that Dyer was the killer? We conclude that the trial court, careful though it was as to other matters, in this instance applied entirely divergent analy-ses and came to irreconcilable results regarding the substantive admissibility of the out-of-court statements by the two victims. b. The Limits of the Constitutional Protections The above analysis demonstrates that the trial court arbitrarily denied Gray his right to present a defense and witnesses. But so to conclude does not settle the constitutional issue before us. The right to present relevant testimony “may, in appropriate cases, bow to accommodate other legitimate interests in the criminal process.” Chambers, 410 U.S. at 295, 93 S.Ct. 1038; see also Rock, 483 U.S. at 55, 107 S.Ct. 2704. A state’s restriction on a defendant’s right to present evidence may not rise to constitutional error if" }, { "docid": "13169305", "title": "", "text": "scheme and that Petters was without fault. “Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’ ” Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984)) (internal citations omitted). However, “[t]he right to present relevant testimony is not without limitation. The right may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” Michigan v. Lucas, 500 U.S. 145, 149, 111 S.Ct. 1743, 114 L.Ed.2d 205 (1991) (quoting Rock v. Arkansas, 483 U.S. 44, 55, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987)). For instance, “[t]he accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.” Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). To that end, the “Constitution leaves to the judges who must make these decisions wide latitude to exclude evidence that is repetitive ..., only marginally relevant or poses an undue risk of harassment, prejudice, [or] confusion of the issues.” Crane, 476 U.S. at 689-90, 106 S.Ct. 2142 (citation and internal quotation marks omitted). The district court did not abuse its discretion in prohibiting Petters from introducing Reynolds’s WITSEC file into evidence. The information contained in the file was collateral to the crimes alleged in the indictment, and admitting it would have risked confusing the issues presented to the jury at trial. Further, defense counsel was able to vigorously attack Reynolds’s credibility in the cross-examination by establishing that he had participated in multiple other fraud schemes and cooperated with the government in an effort to receive leniency in punishment. Accordingly, Petters was not denied the ability to present a complete defense. B. Next, Petters asserts his right to confront Reynolds was stymied when the district court prohibited inquiry into some of Reynolds’s past criminal activities, including Reynolds’s connections" }, { "docid": "23301289", "title": "", "text": "was read. The problem is that, while no verdict had been announced when Pino first spoke to the court, a verdict had been reached. The jury had sent a note to the judge informing her that it had reached a verdict, and the parties had assembled in the courtroom to hear it announced. It was only then, after the jury had completed its deliberations and reached a verdict, moments before that verdict was to be delivered, that Pino asked the court to reopen the evidence so that he could testify. The court denied this request, holding that while the defendant had a right to testify in his own defense, he had waited too long to exercise that right. The Supreme Court has made clear that, while the right to testify in one’s own defense is fundamental, that right “may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process,” Rock, 483 U.S. at 55, 107 S.Ct. 2704, so long as such restrictions on the right to testify are not “arbitrary or disproportionate to the purposes they are designed to serve.” Id. at 56, 107 S.Ct. 2704. Interpreting Rock, the Eighth Circuit has held that, when the district court retains discretion to reopen the evidence, a rule generally limiting testimony to the evidence-taking phase of trial is not “arbitrary or disproportionate to the purposes [it is] designed to serve.” United States v. Jones, 880 F.2d 55, 60 (8th Cir.1989) (citing Rock, 483 U.S. at 56, 107 S.Ct. 2704) (alteration in original). “WTiile placing only a minor limitation on the right [to testify], the rule promotes both fairness and order in trials, interests which, of course, are crucial to the legitimacy of the trial process.” Id. As in our case, Jones involved a defendant who had not asserted his right to testify until after the close of the evidence-taking stage of the trial. In Jones, however, the defendant sought to assert his right to testify before the case had been argued or sent to the jury. Id. at 60 n. 5. Nonetheless, the Eighth Circuit upheld the district" }, { "docid": "5149061", "title": "", "text": "an access device in violation, of 18 U.S.C. § 1029(a)(2) and bank fraud in violation of 18 U.S.C. § 1344. On October 6, 1995, a jury found defendant guilty as charged. On December 20, 1995, the district court sentenced defendant to thirty-seven months of incarceration, to be served consecutive to an undischarged term of imprisonment to which defendant was sentenced in Gallagher I. Defendant timely appeals both his conviction and the sentence imposed. ANALYSIS A. Evidentiary Rulings 1. Standard of Review A district court’s evidentiary rulings during trial are reviewed for an abuse of discretion. United States v. Brooke, 4 F.3d 1480, 1487 (9th Cir.1993). A district court abuses its discretion where its “ruling is clearly in error-where we have a definite and firm conviction of error.” Id. 2. Defendant’s Right to Testify Defendant claims that the district court deprived him of his right to testify on his own behalf when it prevented him from continuing to testify after his counsel finished questioning him. He claims that by not inquiring as to what he wished to communicate further to the jury, the district court effectively denied his right to testify. “Few rights are more fundamental than that of an accused to present witnesses in his own defense.” Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973). This right includes the right of a defendant to take the stand in his own defense and present relevant testimony. Rock v. Arkansas, 483 U.S. 44, 52, 107 S.Ct. 2704, 2709, 97 L.Ed.2d 37 (1987). This right is not, however, without limitation. Id. at 55, 107 S.Ct. at 2711. “The right may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” Id. (quotations omitted). When exercising this right, the defendant must “comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.” Chambers, 410 U.S. at 302, 93 S.Ct. at 1049. Restrictions on a defendant’s right to testify violate the Constitution only when they are arbitrary or' disproportionate to the purposes they" }, { "docid": "19395321", "title": "", "text": "right to testify further is appropriate.\" The trial concluded without Evans retaking the stand. B. Evans claims that the district court should have allowed him to retake the stand and that its decision not to do so violated his constitutional right to testify in his own defense. See Rock , 483 U.S. at 49-53, 107 S.Ct. 2704. This right, though fundamental, \"may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process,\" id. at 55, 107 S.Ct. 2704 (citation omitted), including well-established rules of evidence, Holmes v. South Carolina , 547 U.S. 319, 326, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006). For example, criminal defendants do not have the right to say anything they would like from the stand, regardless of its relevance. Cf. id. at 326-27, 126 S.Ct. 1727 (explaining that excluding testimony that is only \"marginally relevant\" would not violate a defendant's right to present a complete defense (citation omitted) ); Rock , 483 U.S. at 55, 107 S.Ct. 2704 (discussing \"the right to present relevant testimony\"). None of what Evans said during his brief time on the stand was relevant. Relevant evidence makes a \"fact [that] is of consequence in determining the action\" \"more or less probable than it would be without the evidence.\" Fed. R. Evid. 401. His negative feelings about his legal team and the criminal-justice system had nothing to do with any of the facts needed to convict him of robbery or carjacking. Nevertheless, Evans claims that the district court should have done more to determine whether his complaints were relevant before taking away his right to testify. But he just kept repeating the same complaints that he had already described in detail in the letters he had sent to the court. So the court did not need to do anything more under the circumstances, such as hold a separate hearing or conduct a sidebar with the attorneys. It already knew what Evans was going to say and had enough information to evaluate whether it was relevant. Indeed, even now Evans has trouble explaining the relevance of his complaints. It" }, { "docid": "18358856", "title": "", "text": "fundamental and comprehensive”). Federal courts have long recognized, however, that “[a] defendant’s right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions.” United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998) (citations omitted). A defendant’s interest in relevant evidence “may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” Rock v. Arkansas, 483 U.S. 44, 55, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987) (citations omitted) (“In applying its evidentiary rules a State must evaluate whether the interests served by a rule justify the limitation imposed on the defendant’s constitutional right to testify.”). “As a result, state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials. Such rules do not abridge an accused’s right to present a defense so long as they are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’ ” Scheffer, 523 U.S. at 308, 118 S.Ct. 1261 (quoting Rock, 483 U.S. at 56, 107 S.Ct. 2704). The Supreme Court has, moreover, “found the exclusion of evidence to be unconstitutionally arbitrary or disproportionate only where it has infringed upon a weighty interest of the accused.” Id. (citing Rock, 483 U.S. at 56, 107 S.Ct. 2704; Chambers, 410 U.S. at 302, 93 S.Ct. 1038; Washington v. Texas, 388 U.S. 14, 22-23, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967)). “Only if an evidentiary ruling is so egregious that it results in a denial of fundamental fairness does it violate due process and thus warrant habeas relief.” Baze, 371 F.3d at 323 (internal citations and quotations omitted); see also Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir.2003) (“Generally, state-court evidentiary rulings cannot rise to the level of due process violations unless they offend some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” (internal citations and quotations omitted)). In Crane, the Supreme Court dealt with this issue of reviewing state evidentiary rules and explicitly acknowledged [its] traditional reluctance to impose constitutional constraints on" }, { "docid": "18358855", "title": "", "text": "that the district court infringed his fundamental right to a fair trial by striking the testimony of his expert, Markey, and by excluding testimony and evidence from other experts related to Defendant’s insanity defense. While it cannot be disputed that Defendant has a fundamental right to a fair trial, we do not agree that this right was infringed by the state trial court’s evidentiary ruling excluding what it considered to be irrelevant and potentially prejudicial expert evidence. “[T]he Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense.” Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (internal citations and quotations omitted). Having the opportunity to be heard is an essential component of procedural fairness. Id. Being allowed to present “relevant evidence is integral to that right.” Baze v. Parker, 371 F.3d 310, 323 (6th Cir.2004) (citing Taylor v. Illinois, 484 U.S. 400, 408-09, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988) for the proposition that “[t]he need to develop all relevant facts in the adversary system is both fundamental and comprehensive”). Federal courts have long recognized, however, that “[a] defendant’s right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions.” United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998) (citations omitted). A defendant’s interest in relevant evidence “may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” Rock v. Arkansas, 483 U.S. 44, 55, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987) (citations omitted) (“In applying its evidentiary rules a State must evaluate whether the interests served by a rule justify the limitation imposed on the defendant’s constitutional right to testify.”). “As a result, state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials. Such rules do not abridge an accused’s right to present a defense so long as they are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’ ” Scheffer, 523 U.S. at 308, 118 S.Ct. 1261 (quoting Rock, 483 U.S. at 56, 107 S.Ct." }, { "docid": "2059754", "title": "", "text": "have testified as to matters other than those excluded by the limine order, and (2) the jury would have had a chance to “ ‘eyeball’ him and to judge his demeanor and his mental state.” According to Flores-Martinez, had the jury “ ‘eyeballfed]’ him” while he testified, the jury could have formed reasonable doubt as to whether Flores-Martinez had the requisite mental state for conviction. In response, the government argues that the district court did not prevent Flores-Martinez from testifying at trial. Rather, the government maintains that the district court did nothing more than uphold its order granting the government’s motion in limine by .prohibiting Flores-Martinez from testifying regarding matters deemed irrelevant to the proceedings. In addition, the government maintains that the evidence in the case overwhelmingly established Flores-Martinez’s guilt, and that the excluded “evidence regarding his father was no defense to the charges.” It is well established that “[e]very criminal defendant is privileged to testify in his own defense, or to refuse to do so.” Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 648, 28 L.Ed.2d 1 (1971); see, e.g., Rock v. Arkansas, 483 U.S. 44, 49-53, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987); Emery v. Johnson, 139 F.3d 191, 198 (5th Cir.1997) (“A criminal defendant has a constitutional right to testify on his own behalf.” (citation omitted)). However, the right to testify “is not without limitation.” Rock, 483 U.S. at 55, 107 S.Ct. 2704; see, e.g., United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998) (“A defendant’s right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions. A defendant’s interest in presenting such evidence may thus bow to accommodate other legitimate interests in the criminal trial process.” (emphasis added; internal footnote, citations, and quotation marks omitted)); United States v. Pierce, 959 F.2d 1297, 1304 n. 13 (5th Cir.1992) (concluding on appeal from the denial of relief under 28 U.S.C. § 2255 that defendant’s contention that his counsel’s “refusal to allow him to testify at the suppression hearing ... denied him his constitutional right to testify" }, { "docid": "7854530", "title": "", "text": "of fact could have found the essential elements of the crime beyond a reasonable doubt. B. Next, Butch Hach contends that the district court’s evidentiary rulings precluding him from answering certain questions on direct examination denied him his constitutional right to put on a defense. At trial, the district court sustained objections to questions posed by Hach’s attorney concerning whether Butch “knowingly and intentionally became a member of a conspiracy” and whether he “ever joined a conspiracy.” The district court ruled that these questions were leading, suggesting, and argumentative, and advised the jury to “disregard this entire line of questioning.” Butch argues that these evidentiary rulings infringed on the guarantee provided by the Fifth, Six and Fourteenth Amendments that a defendant in a criminal case has a right to testify on his own behalf. See Rock v. Arkansas, 483 U.S. 44, 51-53, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). Undoubtedly, this guarantee is of great importance. Id. at 49, 107 S.Ct. 2704. The right to testify is “essential to due process of law in a fair adversary process.” Id. at 51, 107 S.Ct. 2704. Nevertheless, “the right to present relevant testimony is not without limitation.” Id. In Rock, which Hach contends “bears great relevance to the present case,” the Supreme Court examined whether a defendant’s right to present a defense was abridged by Arkansas’ blanket exclusion of hypnotically refreshed testimony. Id. at 48-49, 107 S.Ct. 2704. The Court held that the defendant’s rights were abridged because of the sweeping nature of the prohibition on such testimony. Id. at 56-57, 107 S.Ct. 2704. This prohibition was so far-reaching that Rock was “virtually prevented from describing any of the events” relevant to her defense. Id. at 57, 107 S.Ct. 2704. Hach’s attempt to analogize this case to Rock, however, falls flat on its face. Far from “being virtually prevented from describing any of the events” relevant to his defense, Butch answered a plethora of questions, in which he was able to refute all of the elements of this charge. In fact, this case is so dissimilar to Rock that we need not" }, { "docid": "23588108", "title": "", "text": "any evidence in the case. Furthermore, counsel advised the court that for ethical reasons he could not examine Peterson if Peterson were allowed to testify. The district court refused to reopen the evidence in order to allow Peterson to testify. Peterson claims that the district court’s refusal to do so violated his constitutional right to testify in his own defense. It is true that a criminal defendant has a constitutional right to testify in his own defense. . See Rock v. Arkansas, 483 U.S. 44, 49, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). However, the right to testify is not absolute; it must sometimes “bow to accommodate other legitimate interests in the criminal trial process.” Id. at 55, 107 S.Ct. 2704 (internal quotation marks and citation omitted). Hence, a defendant does not have an unrestricted right to testify at any point during trial. Generally, if he wishes to testify, he must do so before he rests his case; otherwise, he can move the trial court to reopen the evidence, but the choice whether to reopen is left to the court’s sound discretion. See United States v. Santana, 175 F.3d 57, 64 (1st Cir.1999). Such a rule serves to ensure that the trial proceeds in a fair and orderly manner, with the defendant’s testimony occurring when the judge, jury, and prosecution reasonably expect it. See United States v. Jones, 880 F.2d 55, 59-60 (8th Cir.1989). Thus, in reviewing whether the district court properly exercised its discretion not to reopen the evidence, we look to whether the court properly weighed the defendant’s right to testify against the need for order and fairness in the proceedings. See Rock, 483 U.S. at 56, 107 S.Ct. 2704 (“In applying its evidentiary rules a [court] must evaluate whether the interests served by a rule justify the limitation imposed on the defendant’s constitutional right to testify.”). In conducting this inquiry, we find helpful the Fifth Circuit’s decision in United States v. Walker, 772 F.2d 1172 (5th Cir.1985), where the court enumerated the factors a district court must consider in deciding whether to reopen the evidence to allow" }, { "docid": "53234", "title": "", "text": "stands on no lesser footing than the other Sixth Amendment rights. See Taylor v. Illinois, 484 U.S. 400, 409, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). Just as the accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, the accused also has a right to present his or her own witnesses to establish a defense. See Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). However, a defendant’s right to present relevant evidence is not unbounded, but rather is subject to reasonable restrictions. See Scheffer, 523 U.S. at 308, 118 S.Ct. 1261. Thus, a defendant’s interest in presenting relevant evidence may “ ‘bow to accommodate other legitimate interests in the criminal trial process.’ ” Rock v. Arkansas, 483 U.S. 44, 55, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987) (quoting Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973)). “The accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence. The Compulsory Process Clause provides him with an effective weapon, but it is a weapon that cannot be used irresponsibly.” Taylor, 484 U.S. at 410, 108 S.Ct. 646. Under the Constitution, state and federal rulemakers have broad latitude to fashion rules which operate to exclude evidence from criminal trials. See Scheffer, 523 U.S. at 308, 118 S.Ct. 1261. Such rules will not be deemed to abridge an accused’s right to present a defense so long as they are not “arbitrary” or “disproportionate to the purposes they are designed to serve.” Rock, 483 U.S. at 56, 107 S.Ct. 2704. The evidence that Lea argues should have been introduced in keeping with the Sixth Amendment right to present a defense is evidence which we have already determined is in one instance “privileged” and in the other “inadmissible under standard rules of evidence.” See Taylor, 484 U.S. at 410, 108 S.Ct. 646. In light of those findings, in order to be successful on his Sixth Amendment claim, Lea would have to put forth that the" }, { "docid": "19395320", "title": "", "text": "After the district court asked for the third time whether he would change his mind, he responded with another rant, this time claiming that the district court's inaction on his letters had \"forced\" him to express his concerns directly to the jury. The court cut him off and found \"that if Mr. Evans were allowed to continue his testimony, the [c]ourt has no assurance that he would comply with the directives or the rules of evidence.\" Evans was not done. When the jury returned, the court gave a brief curative instruction. As the jury was getting ready to leave the courtroom to deliberate, Evans yelled, \"[t]hey're still railroading me. That's not right. It's not right.\" The court ordered Evans removed and then excused the jury for the day. The next morning, defense counsel moved for a mistrial based on Evans's outbursts. The court denied the motion and explained that \"[t]he so-called second incident ... convinces me that the judgment that the testimony should be concluded at this point with regard to forfeiture of the defendant's right to testify further is appropriate.\" The trial concluded without Evans retaking the stand. B. Evans claims that the district court should have allowed him to retake the stand and that its decision not to do so violated his constitutional right to testify in his own defense. See Rock , 483 U.S. at 49-53, 107 S.Ct. 2704. This right, though fundamental, \"may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process,\" id. at 55, 107 S.Ct. 2704 (citation omitted), including well-established rules of evidence, Holmes v. South Carolina , 547 U.S. 319, 326, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006). For example, criminal defendants do not have the right to say anything they would like from the stand, regardless of its relevance. Cf. id. at 326-27, 126 S.Ct. 1727 (explaining that excluding testimony that is only \"marginally relevant\" would not violate a defendant's right to present a complete defense (citation omitted) ); Rock , 483 U.S. at 55, 107 S.Ct. 2704 (discussing \"the right to present relevant testimony\"). None of" }, { "docid": "23588107", "title": "", "text": "20 (“[T]he conduct of two- independent sovereigns does not lend itself to the concept of vindictive prosecution.”) (citations omitted). On these facts, we cannot find any error, much less the plain error required for us to act on a waived claim. Alternatively, Peterson suggests that his federal prosecution violated the Equal Protection Clause. It is a violation of equal protection for the government to base prosecution on an unjustifiable standard or arbitrary classification. See Gary, 74 F.3d at 313. But there is no evidence of either here. We therefore find no error in Peterson’s prosecution. II. Failure to Reopen the Evidence to Permit Peterson to Testify At trial, after the defense rested, the court told the jury to expect closing arguments within the hour and went into recess; after recess, the court held a brief charging conference. At the end of the conference, counsel for Peterson told the court that Peterson now wished to testify on his own behalf. Counsel noted that, until now, Peterson had agreed with his attorney’s decision not to put on any evidence in the case. Furthermore, counsel advised the court that for ethical reasons he could not examine Peterson if Peterson were allowed to testify. The district court refused to reopen the evidence in order to allow Peterson to testify. Peterson claims that the district court’s refusal to do so violated his constitutional right to testify in his own defense. It is true that a criminal defendant has a constitutional right to testify in his own defense. . See Rock v. Arkansas, 483 U.S. 44, 49, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). However, the right to testify is not absolute; it must sometimes “bow to accommodate other legitimate interests in the criminal trial process.” Id. at 55, 107 S.Ct. 2704 (internal quotation marks and citation omitted). Hence, a defendant does not have an unrestricted right to testify at any point during trial. Generally, if he wishes to testify, he must do so before he rests his case; otherwise, he can move the trial court to reopen the evidence, but the choice whether to reopen" }, { "docid": "19395329", "title": "", "text": "what Evans was going to say. But \"questions of relevance and prejudice are for the District Court to determine in the first instance,\" Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 387, 128 S.Ct. 1140, 170 L.Ed.2d 1 (2008), and the district court did not rule Evans's planned testimony inadmissible for lack of relevance. Rather, the district court found that \"if Mr. Evans were allowed to continue his testimony, [it had] no assurance that he would comply with the directives or the rules of evidence,\" and concluded that Evans could not \"respond to questions in a question-and-answer format.\" A trial court may surely limit a defendant's right to testify if he fails to abide by the \"well-established rules of evidence [that] permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury.\" Holmes, 547 U.S. at 326, 126 S.Ct. 1727. But here I respectfully disagree that the district court's limited findings support the complete exclusion of Evans's testimony. See Rock, 483 U.S. at 55-56, 107 S.Ct. 2704 (\"[R]estrictions of a defendant's right to testify may not be arbitrary or disproportionate to the purposes they are designed to serve.\"). When he took the stand, Evans expressed, in narrative form, his frustrations with the judicial process in general and his defense team in particular. The court calls these initial comments \"irrelevant and highly inflammatory.\" In the context of a trial, and if untethered to a defense to the charges, that may well be true. But Evans had been trying to raise these issues with the court for several months. Evans wrote the district court numerous times, expressing his concern that he was not able to see the evidence against him and complaining that his counsel would not develop his defense because he would not plead guilty, that his counsel would not investigate evidence necessary to his defense, and that his defense team was aiding in his conviction. With this backdrop, a ruling on his right to testify could not be divorced from these" }, { "docid": "23467698", "title": "", "text": "surely note any deviation in the description of the crime from the evidence adduced at trial.” Id. at 12. Finally, in disposing of Gill’s due process claim, the California Court of Appeal observed that “[t]he reliability of the [probation] report is further ensured by the fact that defendant had the opportunity to challenge the accuracy of the report, at sentencing and to correct any misstatements. Thus, while there may be a case where due process will demand that a court hear the defendant concerning a prior conviction, this is not it.” Id. at 13(citation and internal quotation marks omitted). The majority assigns error to the California Court of Appeal’s ruling, relying on the United States Supreme Court’s opinion in Rock v. Arkansas, 483 U.S. 44, 55-56, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). However, the majority gives short shrift to the Supreme Court’s recognition that “[o]f course, the right to present relevant testimony is not without limitation [and] may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” Id. at 55, 107 S.Ct. 2704. (emphasis added) (citation and internal quotation marks omitted). The Supreme Court’s matter-of-fact acknowledgment of the need to accommodate other procedural priorities calls into question the majority’s facile application of Rock to the facts of this case. For the Supreme Court expressly cautioned that the exercise of the defendant’s right must be consistent with “both fairness and reliability.” Id. at 56, n. 11, 107 S.Ct. 2704. Is fairness fostered if the defendant presents testimony at the Three Strikes Hearing when the State may not? Do twenty-year-old recollections serve the interests of reliability? The California Court of Appeal answered these questions in the negative, and committed no error in doing so. In accordance with the dictates of Rock, the California Court of Appeal restricted defendant’s right to testify after considering the parallel interests of fair ness and reliability. The California Court of Appeal ruled that on the facts of this case, defendant’s right to testify did not outweigh the other interests properly considered by the court. The district court gave appropriate deference and" }, { "docid": "2059755", "title": "", "text": "S.Ct. 648, 28 L.Ed.2d 1 (1971); see, e.g., Rock v. Arkansas, 483 U.S. 44, 49-53, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987); Emery v. Johnson, 139 F.3d 191, 198 (5th Cir.1997) (“A criminal defendant has a constitutional right to testify on his own behalf.” (citation omitted)). However, the right to testify “is not without limitation.” Rock, 483 U.S. at 55, 107 S.Ct. 2704; see, e.g., United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998) (“A defendant’s right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions. A defendant’s interest in presenting such evidence may thus bow to accommodate other legitimate interests in the criminal trial process.” (emphasis added; internal footnote, citations, and quotation marks omitted)); United States v. Pierce, 959 F.2d 1297, 1304 n. 13 (5th Cir.1992) (concluding on appeal from the denial of relief under 28 U.S.C. § 2255 that defendant’s contention that his counsel’s “refusal to allow him to testify at the suppression hearing ... denied him his constitutional right to testify on his own behalf’ was without merit since “even assuming that the testimony would have been admissible,” defendant had “failed to demonstrate the relevance of the issue, or any resulting prejudice”); United States v. Winkle, 587 F.2d 705, 711 (5th Cir.1979) (concluding on direct appeal that it is “well within [the district court’s] discretion concerning questions of relevance” to exclude a criminal defendant’s testimony when it is “irrelevant”). Indeed, “Numerous ... procedural and evidentiary rules control the presentation of evidence and do not offend the defendant’s right to testify.” Rock, 483 U.S. at 55 n. 11, 107 S.Ct. 2704 (citations omitted); see, e.g., Nix v. Whiteside, 475 U.S. 157, 173-74, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986) (holding that “there is no right whatever — constitutional or otherwise — for a defendant to use false evidence,” and since there is “no permissible choice to testify falsely,” a criminal defendant is deprived of “neither his right to counsel nor the right to testify truthfully” by “defense counsel tak[ing] steps to persuade [him] to testify truthfully,” or" }, { "docid": "8047761", "title": "", "text": "perceive any pertinent difference. Why, for example, do Betty Gray’s statements that Gray was angry with Betty Gray “tend to prove that Gray was the killer,” while Roundy’s statements that Dyer threatened her life do not tend to prove that Dyer was the killer? We conclude that the trial court, careful though it was as to other matters, in this instance applied entirely divergent analy-ses and came to irreconcilable results regarding the substantive admissibility of the out-of-court statements by the two victims. b. The Limits of the Constitutional Protections The above analysis demonstrates that the trial court arbitrarily denied Gray his right to present a defense and witnesses. But so to conclude does not settle the constitutional issue before us. The right to present relevant testimony “may, in appropriate cases, bow to accommodate other legitimate interests in the criminal process.” Chambers, 410 U.S. at 295, 93 S.Ct. 1038; see also Rock, 483 U.S. at 55, 107 S.Ct. 2704. A state’s restriction on a defendant’s right to present evidence may not rise to constitutional error if the evidence is immaterial, unimportant, or untrustworthy. (i) Materiality and Importance to the Defense To establish a violation of the constitutional right to present a witness, a defendant must make a “plausible showing of how [the] testimony would have been both material and favorable to his defense.” Valenzuela-Bernal, 458 U.S. at 867, 102 S.Ct. 3440; see also Rock, 483 U.S. at 51, 107 S.Ct. 2704; United States v. Scheffer, 523 U.S. 303, 315, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998). In addition, judges may exclude evidence that is repetitive, only marginally relevant, or poses an undue risk of harassment, prejudice, or confusion. Crane, 476 U.S. at 689-90, 106 S.Ct. 2142. Much, although not all, of the hearsay evidence Gray submitted regarding Dyer was material to the case. While the statements regarding Roundy’s state of mind were quite probably not material (and we do not ascribe constitutional error to their exclusion), the statements regarding Dyer’s occupation, threats, and behavior were. This latter evidence provides some basis for believing that Dyer might have killed Roundy. These facts" }, { "docid": "5149062", "title": "", "text": "to communicate further to the jury, the district court effectively denied his right to testify. “Few rights are more fundamental than that of an accused to present witnesses in his own defense.” Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973). This right includes the right of a defendant to take the stand in his own defense and present relevant testimony. Rock v. Arkansas, 483 U.S. 44, 52, 107 S.Ct. 2704, 2709, 97 L.Ed.2d 37 (1987). This right is not, however, without limitation. Id. at 55, 107 S.Ct. at 2711. “The right may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” Id. (quotations omitted). When exercising this right, the defendant must “comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.” Chambers, 410 U.S. at 302, 93 S.Ct. at 1049. Restrictions on a defendant’s right to testify violate the Constitution only when they are arbitrary or' disproportionate to the purposes they are designed to serve. Rock, 483 U.S. at 55-56, 107 S.Ct. at 2710-12. In the present ease, defendant elected to take the stand during trial. After he finished testifying, defendant’s counsel indicated that defendant wished to take the stand again. Defendant’s counsel also informed the court that he was advising the defendant to not retake the stand. The district court urged defendant to heed the advice of his counsel. The court then gave defendant and his counsel the lunch hour to confer on the matter. After lunch, defendant’s counsel indicated he was planning to recall defendant. The Government objected, arguing that such testimony would be cumulative with defendant’s prior testimony. Defense counsel conceded that the testimony would be cumulative. The district court allowed defendant to retake the stand, but cautioned defendant that he needed to answer questions in a brief, plain manner. . Defendant was asked three questions. When defendant’s counsel indicated that he had no further questions, defendant stated he wanted to continue speaking. Because there was no question pending, the district court would" }, { "docid": "14901885", "title": "", "text": "presented a clear opportunity for Moreno to save himself and alert authorities about the threat to his family. Instead, he kicked Officer Krajewski in the head twice in his attempt to escape to complete his illegal delivery.- Because Moreno has failed to demonstrate that he did not have the opportunity to escape the threatened harm, we need not discuss the other elements of duress. Becerra, 992 F.2d at 964 (citations omitted). The district court did not err in granting the government’s motion to strike the proposed defense of duress. III. The constitutional right to testify is found in the Due Process Clause, the Fifth Amendment’s guarantee against compelled testimony, and the Sixth Amendment. Rock v. Arkansas, 483 U.S. 44, 51-53, 107 S.Ct. 2704, 2708-10, 97 L.Ed.2d 37 (1987). Moreno contends that, pursuant to the constitutional right to testify, the district court was required to permit him to explain to the jury that he behaved in the manner that he did because he was acting under duress, whether or not he had demonstrated prima facie evidence of duress. We review de novo the question whether a trial court’s suppression of a defendant’s testimony violates the constitutional right to testify. See U.S. v. Anderson, 79 F.3d 1522, 1525 (9th Cir.1996) (de novo review for a Fifth Amendment violation); U.S. v. Benlian, 63 F.3d 824, 826 (9th Cir.1995) (de novo review for denial of a Sixth Amendment right); U.S. v. Contreras, 63 F.3d 852, 857 (9th Cir.1995) (same). The constitutional right to testify is not absolute. Rock, 483 U.S. at 55, 107 S.Ct. at 2711. In Rock, the Supreme Court referred to this guarantee as “the right to present relevant testimony.” Id. (emphasis added). In addition, the Rock Court noted that “[t]he right ‘may, in appropriate eases, bow to accommodate other legitimate interests in the criminal trial process.’” Id., quoting Chambers v. Mississippi 410 U.S. 284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297 (1973). Without question, the Government has a legitimate interest in excluding evidence which is not relevant or is confusing under Rule 402 and Rule 403 of the Federal Rules" }, { "docid": "2505106", "title": "", "text": "294, 93 S.Ct. 1038. . Id. at 302-03, 93 S.Ct. 1038. . Id. at 302, 93 S.Ct. 1038. . Holmes, 547 U.S. at 321, 126 S.Ct. 1727. . Rock v. Arkansas, 483 U.S. 44, 45, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987); accord id. at 49, 107 S.Ct. 2704. . See id. at 62, 107 S.Ct. 2704. . See Lockyer, 538 U.S. at 71-72, 123 S.Ct. 1166. . Boyer also cites to Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), which we find inapposite because that case concerned state statutes that barred a coparticipant from testifying for the defendant but not the prosecution. Id. at 16-17, 87 S.Ct. 1920. The Court held that the defendant \"was denied his right to have compulsory process for obtaining witnesses in his favor because the State arbitrarily denied him, the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the' defense.\" Id. at 23, 87 S.Ct. 1920 (footnote omitted). No similar bar was in play here. . Gray, 616 F.3d at 439 (citing Williams, 529 U.S. at 409, 120 S.Ct. 1495). . Bell, 535 U.S. at 694, 122 S.Ct. 1843 (citation omitted). . Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007) (citation omitted). . Boyer, 56 So.3d at 1130. (\"However, the record before this court indicates that this court’s ruling was made on the merits as presented and nothing has been currently argued that would indicate that the ruling was erroneous,”). . Rock, 483 U.S. at 61, 107 S.Ct. 2704. . Boyer has not directed this Court to any other cases that illustrate the alleged per se ban on confessions experts across the state of Louisiana. . Rock, 483 U.S. at 62, 107 S.Ct. 2704. . Id. at 57, 107 S.Ct. 2704. . Scheffer, 523 U.S. at 308, 118 S.Ct. 1261 (States have \"broad latitude” to exclude evidence, and \"[s]uch rules do not abridge an accused’s right to present" } ]

[ { "docid": "13519015", "title": "", "text": "were alleged which would sustain such a decree. The pleadings in admiralty are simple, and it is not necessary that they conform to the requirements of common-law pleadings, provided the nature of a claim is properly .stated,, so that it may be fully understood by the court and justice administered. We think the allegation in the cross-lib'el was sufficient to state a claim for damages because bf a breach of an implied warranty to furnish a seine which, with its .accessories, was reasonably fit for the p.ufi'pose for which the respondent knew it was to be used. ' In its answer the respondent admits that the schooner was regularly engaged in fisheries during the year' 1918, and a part of, that time in seining for mackerel, and that the seine .with its accessories, which included the two-inch purse line, was delivered to the schooner, to .pe used by it “in pursuing said fisheries.” While, therefore, the libel does not contain ,an .allegation that the-Linen Thread Company knew the purpose for which the seine-and its- accessories, including the purse line, was to be used, it admits in its answer that it had such knowledge. The contract to furnish the seine and accessories, including .the purse fine, was a maritime, one, and within the jurisdiction' of the court of admiralty. See Hiram R. Dix on (D. C.) 33 F. 297. As the contract was a maritime one, the court could sustain a cross-libel for its breach. The Electron, 48 F. 689, 21 C. C. A. 12; The Highland Light (D. C.) 88 F. 296; The Venezuela (D. C.) 173 F. 834; Reichert Towing Line, Inc., v. Long Island Machine & Marine Construction Co. (D. C.) 287 F. 269. Regardless of the statute of Massachusetts, there is under the common law an implied warranty that articles supplied by a manufacturer or dealer shall be reasonably fit for the purpose for which he know they were intended, provided the purchaser relies upon his skill and knowledge. The Massachusetts statute is but declaratory of this. The testimony taken by the master fully proved that the" } ]

[ { "docid": "20084989", "title": "", "text": "the cost of securing the material in excess of the contract price and for delay and loss of use of the vessel. In addition, recovery is sought of a down payment which was made at the time the contract was entered into. The sole issue raised on this motion is whether this action is within the juris-, di'ction of this Court under the provisions of § 1333 of Title 28 of the United States Code, giving District Courts original •. jurisdiction “of any civil case of admiral-.: ty or maritime jurisdiction”. Respondent urges that the libel,, ’ is not within the admiralty jurisdiction-of this Court on the ground that the ac- ' tion is one alleging a breach of an exe?qtory contract,, and that such actions are ’ not within the admiralty jurisdiction of,. this Court. If such was ever the law, it' is, certainly not the law since the decision, of the United States Supreme Court in. Archawski v. Hanioti, 1956, 350 U.S. 532, ; 76 S.Ct. 617. The respondent also urges that the agreement sued on is not such as to be considered a maritime contract. Ordinarily, a contract relating to a ship in ' its use as such or to commerce on navigable waters is subject to the maritime law and the case is one of admiralty or maritime jurisdiction whether the contract'is ¡ one to be performed on land or water.'-1: Benedict, Admiralty 130 (6th.ed',, 1940); -see James Richardson & Sons v. Conners Marine Co., 2 Cir., 1944, 141 F.2d 226. So, contracts providing'for thq repair of a particular ship or for supplies for • a'particular ship have been held to bes within the maritime jurisdiction of the, Federal Courts. The Electron, D.C.S.D.N.Y.1891, 48 F. 689; Reed v. Weule, 9 Cir., 1910, 176 F. 660; The Hiram R. Dixon, D.C.E.D.N.Y.1887, 33 F. 297; Linen Thread Co. v. Shaw, 1 Cir., 1925, 9 F.2d 17. • The cases relied upon by respondent, relate to agreements to supply the owner of several steamships all the .fuel' re-'' quired by the steamships for a period, 'of■■ time. In those" }, { "docid": "2143514", "title": "", "text": "Cir. 1945); Houston-New Orleans, Inc. v. Page Engineering Co., 353 F.Supp. 890, 899 (E.D.La. 1972); In re Alamo Chemical Transportation Co., 320 F.Supp. 631, 639 (S.D.Tex.1970); Soileau v. Nicklos Drilling Co., 302 F.Supp. 119, 127 (W.D.La.1969). . “[I]n our view Ryan, by necessary implication, confirmed the applicability to maritime service contracts of the hornbook rule of contract law that one who contracts to provide services impliedly agrees to perform in a diligent and workmanlike manner. 9 S. Williston, Contracts § 1012C, at 38-39 (3d ed. Jaeger 1967). This obligation has been implied in contracts ranging from an ordinary construction contract, Henggeler v. Jindra, 191 Neb. 317, 214 N.W.2d 925 (1974), to a contract to install plumbing, In re Estate of Talbott, 184 Kan. 501, 337 P.2d 986 (1959), to a contract to tan goat skins, William Beaden Kopf Co. v. Henwood & Nowak, Inc., 14 F.2d 125 (D.Mass.1926), and there is no reason why it should not be implied in maritime service contracts as well.” Fairmont Ship. Corp. v. Chevron Int. Oil, Inc., 511 F.2d 1252, 1259 (2d Cir. 1975). . See Interstate Steel Corp. v. S.S. “Crystal Gem”, 317 F.Supp. 112, 120 (S.D.N.Y.1970); Alcoa Steamship Company v. Charles Ferran & Company, 242 F.Supp. 962, 973 (E.D.La. 1965); Hershey Chocolate Corp. v. The S.S. Robert Luckenbach, 184 F.Supp. 134, 140 (D.Ore. 1960), aff'd, Albina Engine & Machine Works, Inc. v. Hershey Chocolate Corp., 295 F.2d 619 (9th Cir. 1961). . United New York Sandy Hook Pilot’s Ass’n v. Rodermond Industries, Inc., 394 F.2d 65, 71 (3rd Cir. 1968); Lusich v. Bloomfield S.S. Co., 355 F.2d 770, 776 (5th Cir. 1966); American Export Lines v. Norfolk Shipbuilding and Drydock Corp., 336 F.2d 525 (4th Cir. 1964); Booth S.S. Co. v. Meier & Oelhalf Co., 262 F.2d 310 (2d Cir. 1958); Smith v. Brown & Root Maine Operators, 234 F.Supp. 130 (W.D.La.1965), affd, 376 F.2d 852 (5th Cir. 1967). . INSPECTION & ACCEPTANCE OF REPAIR WORK This will acknowledge thát repair work done on the Seaman [sic] LP turbine rotor, HP turbine rotor, rotor casing, and labyrinth assemblies has been inspected and" }, { "docid": "3414196", "title": "", "text": "definition of “maritime contracts.” In Archawski v. Hanioti, 1956, 350 U.S. 532, 76 S.Ct. 617, 100 L.Ed. 676, respondent received money for passage, kept the money and did not furnish the passage. The Court upheld admiralty jurisdiction over the suit for restitution saying that “we conclude that, so long as the claim asserted arises out of a maritime contract, the admiralty court has jurisdiction over it.” 350 U.S. at page 535, 76 S.Ct. at page 620. In Sword Line, Inc. v. United States, 2 Cir., 1955, 228 F.2d 344, affirmed 1956, 351 U.S. 976, 76 S.Ct. 1047, 100 L.Ed. 1493, the court found admiralty jurisdiction over a libel to recover overpayments of charter hire, setting up a broad test of the inherent maritime character of the underlying transaction. The court indicated that unrealistic and harsh limitations seeking to confine contracts with a maritime flavor solely in the civil law are contrary to the real spirit of admiralty. In Putnam v. Lower, 9 Cir., 1956, 236 F.2d 561, 569, the court stated that “where the original jurisdiction is maritime, a court of admiralty may entertain an issue of fraud, mistake, or other equitable claim, where either is alleged as affecting the rights of parties to a maritime action.” See also, Smith-Johnson S. S. Corp. v. United States, 1956, 142 F.Supp. 367, 135 Ct.Cl. 866; Compania Argentina De Navegacion Dodero v. Atlas Maritime Corp., supra. It thus appears that libelant is the real party in interest and under the jurisdiction of the admiralty court as defined by the Supreme Court the first cause of action has sufficient maritime flavor to be retained in admiralty jurisdiction. As to the second cause of action for fuel barging and expenses, contracts providing for supplies for a particular ship have long been held to be within the maritime jurisdiction of the federal courts. Compania Argentina De Navegacion Dodero v. Atlas Maritime Corp., supra; Reed v. Weule, 9 Cir., 1910, 176 F. 660; The Hiram R. Dixon, D.C.E.D.N.Y.1887, 33 F. 297. Therefore libelant’s motion to overrule respondent’s exceptions to the libel is hereby granted. So ordered." }, { "docid": "8477798", "title": "", "text": "Wilmar Marine Eng. & Sales Corp., 5 Cir. 1969, 413 F.2d 1332; Gilmore & Black, The Law of Admiralty, 21 (1957). Those who repair a vessel or the equipment aboard it make a warranty, the implied warranty of workmanlike performance. Alcoa Steamship Co. v. Charles Ferran & Company, 5 Cir. 1967, 383 F.2d 46; Sieula Oceanica, S. A. v. Wilmar Marine Eng. & Sales Corp., 5 Cir. 1969, 413 F.2d 1332. The rule is set forth succinctly in Alcoa, supra: “It is well settled that a contract to repair a vessel is maritime . Consequently, a shipowner has a maritime cause of action whether he sues in contract for a breach of warranty of workmanlike service or in tort for the negligent performance of a maritime contract Federal law governs the construction of the terms of the repair contract, . . . and would also appear to govern the standard of performance due under the contract For the reasons set forth above, Creole did not perform its work in a workmanlike manner. It failed to notice that the resistors were improper and it failed to give an adequate warning. Both of these would have been done had the service been workmanlike. Hence, HNO was much like the patient whose doctor says “your blood pressure is 170/90.” The patient needs to know the significance of this observation. Thus, HNO is also entitled to judgment on the ground of breach of warranty as well as for negligence; both for Creole’s failure to discover the defect and for their failure to warn. B. PAGE The HNO-Page contract is also a maritime one. The HNO-Page contract called for Page to fabricate the console for the dragline aboard the VELMO-R. Page had serviced the dragline aboard the VELMO-R since the vessel was purchased by Houston; it was aware of the collision damages sustained in February, 1967; it knew the console would be installed aboard the VELMO-R. Contracts to furnish supplies or accessories to a particular vessel are maritime in nature even though the supplier does not himself incorporate the product into the ship. The Hiram" }, { "docid": "8477796", "title": "", "text": "that a third party there at the time of this first power failure had seen sparks flying from the cubicle. (R. 77, 78, 80) and (PAGE exhibit 7, pp. 34-36). Under these circumstances HNO should have been alerted to the dangers of operation, and HNO should have awaited further communication with Page and Creole. To continue operation in the light of these circumstances constituted negligence that contributed to the cause of the accident. These findings are to some degree inconsistent with my oral conclusions at the end of the hearing. It may be that, to use an old poker player’s axiom, “study long means study wrong.” But they represent my best deliberate judgment after careful reconsideration of the testimony and lengthy post-trial briefs and supplementary briefs in response to questions directed to counsel by the court after hearing the evidence. V. THE CROSS CLAIM Indemnity here is inappropriate. Creole is more than passively or vicariously responsible. Its employees’ failure to discover the nature of the defect, and their failure adequately to warn HNO places Creole in a different position from that of a party who is not in any way guilty of actual fault and is found only technically responsible for the negligent act of the indemnitor. Tri-State Oil Tool v. Delta Marine, 5th Cir. 1969, 410 F.2d 178; General Electric v. Cuban American, 5th Cir. 1968, 396 F.2d 89. Truxillo v. Gentilly Medical Bldg., Inc., La.App.1969, 225 So.2d 488, at 495-496. Creole's position was not simply the position of one who installs equipment defectively manufactured by another; here it was in the position of an expert upon whom HNO relied, and who represented that the operations could continue with caution. VI. APPLICABLE LAW: ADMIRALTY A. CREOLE The contract between HNO „ and Creole was to make repairs to equipment aboard a vessel in navigation. This was a maritime contract. North Pacific Steamship Company v. Hall Brothers Railway & Shipbuilding Co., 1919, 249 U.S. 119, 39 S.Ct. 221, 63 L.Ed. 510; Alcoa Steamship Co. v. Charles Ferran & Co., 5 Cir. 1967, 383 F.2d 46; Sieula Oceanica, S. A. v." }, { "docid": "23421975", "title": "", "text": "Seas Shipping Co., 149 F.2d 98, 100 (3d Cir.1945), aff’d, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946). While the doctrine of strict liability in tort (often referred to as doctrine of implied warranty) at its inception did not have the wide acceptance which would justify its incorporation into the general maritime law, Noel v. United Aircraft Corp., 204 F.Supp. 929 (D.Del. 1962), it has gained general acceptance in the intervening years and has been incorporated in admiralty law. Schaeffer v. Michigan-Ohio Navigation Co., 416 F.2d 217 (6th Cir.1969); Ohio Barge Line, Inc. v. Dravo Corp., 326 F.Supp. 863 (W.D.Pa.1971); In re Marine Sulphur Transport Corp., 312 F.Supp. 1081 (S.D.N.Y.1970); Soileau v. Nicklos Drilling Co., 302 F.Supp. 119 (W.D.La. 1969); Krause v. Sud-Aviation, Societe Nationale de Constructions Aeronautiques, 301 F.Supp. 513 (S.D.N.Y.1968), aff’d 413 F.2d 428 (2d Cir.1969). We think now that the doctrine of strict liability in tort is a part of the general maritime law and it is thus available to this plaintiff under the Death on the High Seas Act, which applies federal admiralty law. D’Aleman v. Pan American World Airways, supra. The trial court in its memorandum opinion characterized plaintiff’s position as follows: “Libelant’s position is that the failure of the bleed air duct system on the plane was the cause of the crash, that this constituted negligence and breach of warranty on the part of the defendant, because the defendant installed this system in the plane in question knowing it to be faulty.” 331 F.Supp. at 258. We are not concerned particularly about the labels of negligence and breach of warranty in this action and note that strict liability in tort is often referred to by other names as “products liability”, see Hursh, American Law of Products Liability, and, in its beginnings, it often had the label of breach of implied warranty. See, Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960). Initially we will refer to this as an action in strict liability in tort and will follow this nomenclature without recognizing any difference between the action under that" }, { "docid": "13854082", "title": "", "text": "jurisdiction. See also, Sevits v. McKiernan-Terry Corp., supra, Middleton v. United Aircraft Corp., 204 F. Supp. 856 (SDNY 1960), and Schaeffer v. Michigan-Ohio Navigation Co., 416 F.2d 217 (6th Cir. 1969). The Court further finds that even though the defendants’ (NASSCO) tortious conduct occurred on land, admiralty has jurisdiction on all maritime torts. It was stated without equivocation in Dunn v. Wheeler Shipbuilding Corp., 86 F.Supp. 659 (EDNY 1949), “that which the libels portray is clearly a maritime tort, i.e., the alleged error in design, although originating on land, became manifest, if at all, upon the high seas.” Granted, the present case was not one of defective design, but nevertheless the act on land was the cause in fact of the damage on the seas. Admiralty jurisdiction is proper even though the negligent act occurs on land. The damage was inflicted at a point within admiralty jurisdiction. See, Patel Cotton Co. v. The Steel Traveler, 111 F. Supp. 821 (SDNY 1953); Todd Shipyards Corp. v. United States, 69 F.Supp. 609 (D.Me.1947); The S. S. Samovar, 72 F.Supp. 574 (N.D.Cal.1947). There is an unavoidable and solidifying relationship between the wrongful acts and omissions committed on land and the injury or damage that is inflicted on navigable waters. They cannot be separated, and liability cannot be avoided merely because a defect was not discovered while the ship sat on land before delivery. The damage was done on navigable waters and is a maritime tort. Therefore, the Court concludes that a products liability action will lie in admiralty. PRIVITY IS NOT NECESSARY IN ORDER FOR A CAUSE OF ACTION TO LIE BETWEEN PLAINTIFFS AND DEFENDANT NASSCO The distinctive feature of many cases involving products liability actions is the effort to widen the range of plain tiffs who may be entitled to relief from any given defendant and, at the same time, to increase the number of defendants who may be liable to a specific plaintiff. To accomplish these aims established concepts of liability must often be expanded, limiting concepts removed, and new theories developed. However, it is noted that as the common law" }, { "docid": "5527033", "title": "", "text": "as such, or to commerce in navigable waters, such a contract is the subject of maritime law and the case is within admiralty jurisdiction, whether the performance of the contract is to occur on land or at sea. Martran Steamship Co. v. Aegean Tankers, Ltd., 170 F.Supp. 477 at 478 (S.D.N.Y.1959), citing Compania Argentina De Navegacion Dodero v. Atlas Maritime Corp., 144 F.Supp. 13 (S.D.N.Y.1956). But this general rule does not go without limitation: It is generally true that a bond securing the performance of a charter party is not a maritime contract within the jurisdiction of Admiralty and that a surety company executing such bond may not be sued thereon in admiralty. Pacific Surety Company v. Leatham and Smith Towing and Wrecking Company, 7 Cir., 1907, 151 F. 440; Eadie v. North Pacific S.S. Co., D.C.N.D.Cal.1914, 217 F. 662. In the Pacific Surety Co. [151 F. 441] case the court said: ‘That the charter party was a maritime contract and the undertaking of the charterer was for maritime service and transactions is unquestionable. * * The appellant, however, as surety on the bond, was no party to the maritime undertaking; neither promised performance of the charter service, nor was authorized under the contract terms to perform. * * * The obligation of the appellant as surety on the bond was not for performance of the charter party, but for the payment of damages in the event of nonperformance on the part of the charterer.’ Northern Star S.S. Co. v. Kansas Milling Co., supra, at 535, 536. Performance of an actual “maritime service” is required for jurisdictional “maritime flavor”. Both plaintiffs and defendant rely upon Kossick v. United Fruit Company, 166 F.Supp. 571 (S.D.N.Y.1957), aff’d, 275 F.2d 500 (2 Cir. 1960), reversed, 365 U.S. 731, 81 S.Ct. 886, 6 L.Ed.2d 56 (1961). The district court held the New York statute of frauds precluded defendant’s alleged oral promise, finding that there existed no beneficial consideration moving from the promisee to the promisor since the promisor’s duty of maintenance and cure had been already discharged. Kossick, supra, 166 F.Supp. at 574, 577." }, { "docid": "8477800", "title": "", "text": "R. Dixon, EDNY 1887, 33 F. 297; Reed v. Weule, 9 Cir. 1910, 176 F. 660; Linen Thread Company v. Shaw, 1 Cir. 1925, 9 F.2d 17, 1926 A.M.C. 67; Compania Argentina De Nav. D. v. Atlas Maritime Corp., S.D.N.Y.1956, 144 F.Supp. 13, 1957 A.M.C. 100; Martrari Steamship Co. v. Aegean Tankers, Ltd., S.D.N.Y. 1959, 170 F.Supp. 477; Gilmore & Black, The Law of Admiralty, 21 (1957). The locality of initial performance of the contract is not determinative. Even were the contract not a basis for admiralty jurisdiction, jurisdiction would still lie in tort. “Although unknown to admiralty until relatively recent times, a products liability action predicated upon the manufacturer’s negligence undoubtedly will now lie in admiralty.” In re Alamo Transportation Co., S.D.Tex.1970, 320 F.Supp. 631. Middleton v. United Aircraft Corp., S.D.N.Y.1960, 204 F.Supp. 856, 859; Soileau v. Nicklos Drilling Co., W.D.La. 1969, 302 F.Supp. 119; Schaeffer v. Michigan Ohio-Nav. Co., 6th Cir. 1969, 416 F.2d 217. Sevits v. McKiernan-Terry Corp., S.D.N.Y.1966, 264 F.Supp. 810. This doctrine was engrafted from existing state law. As stated in Littlehale v. E. I. du Pont de Nemours & Co., S.D.N.Y. 1966, 268 F.Supp. 791, 797: “[A]dmiralty judges often look to the law prevailing on the land. * * * If the ‘law prevailing on the land’ recognized such a claim ‘uniformly or nearly so, a United States admiralty court would approach the problem here by asking itself why it should not likewise do so; * * *.’ ” And, as stated in Schaeffer v. Michigan-Ohio Navigation Co., 6th Cir. 1969, 416 F.2d 217, at 221 “[A]dmiralty law (albeit slowly) draws upon and incorporates the law prevailing on land where there is no historic (or statutory) principle to the contrary.” And, for a products liability action, “the locale of the occurrence is jurisdictionally dispositive.” Alamo, supra, 320 F.Supp. at 634. The protection of the doctrine of products liability does not extend to personal injuries alone. W. Prosser, the Law of Torts § 101 at 665-66 (4th ed. 1971) remarks: “There can be no doubt that the seller’s liability for negligence covers any kind of" }, { "docid": "23439466", "title": "", "text": "17; Roberts v. United States, 9 Cir. 1974, 498 F.2d 520, 523-24; cf. American Home Assur. Co. v. United States, M.D.Pa.1975, 389 F.Supp. 657. . 46 U.S.C. § 688. The court found, and defendants do not contest, that Shinn’s work on a drilling barge made him a Jones Act seaman. . 33 U.S.C. § 901 et seq. . The district judge’s decision as to Bell naturally also required dismissal of Mobil’s cross-claims. . It is worth mentioning that our court recently reserved the question whether products liability doctrine should be made a part of the general maritime law. Williams v. Brasea, 5 Cir. 1974, 497 F.2d 67, 78. This case, however, like Williams, is in our view an inappropriate vehicle for deciding the issue, because we conclude that the facts here are insufficient in any event to establish liability under the theory. We recognize, of course, that a number of courts, including several district courts within this Circuit, have permitted admiralty suits based upon either the breach of an implied warranty or strict products liability. See Lindsay v. McDonnell Douglas Aircratt Co., 8 Cir. 1972, 460 F.2d 631; Streach v. Assoc. Container Transp., Ltd., C.D.Cal.1975, 388 F.Supp. 935; Houston-New Orleans, Inc. v. Page Engineering Co., E.D.La.1972, 353 F.Supp. 890, 899; Sears, Roebuck and Co. v. American President Lines, Ltd., N.D.Cal.1971, 345 F.Supp. 395, 401-02; Kropp v. Douglas Aircratt Co., E.D.N.Y.1971, 329 F.Supp. 447, 455; Ohio Barge Line, Inc. v. Dravo Corp., W.D.Wash.1971, 326 F.Supp. 863; In re Alamao Chemical Transp. Co., S.D.Tex. 1970, 320 F.Supp. 631, 634-38; In re Marine Sulphur Transp. Co., S.D.N.Y.1970, 312 F.Supp. 1081, 1102, modified, 2 Cir., 460 F.2d 89, cert. denied, 1972, 409 U.S. 982, 93 S.Ct. 318, 34 L.Ed.2d 246; Soileau v. Nicklos Drilling Co., W.D.La.1969, 302 F.Supp. 119, 126-27. . This misunderstanding explains plaintiffs’ erroneous reliance on Lindsay v. McDonnell Douglas Aircraft Co., 8 Cir. 1972, 460 F.2d 631. In Lindsay the Eighth Circuit, after concluding that federal maritime law would and should adopt the doctrine of strict liability in tort, id. at 635-36, remanded the case to the district court for a" }, { "docid": "13854081", "title": "", "text": "liability claim will lie in admiralty. Sanderlin v. Old Dominion Stevedoring Corp., 385 F.2d 79 (4th Cir. 1967); Sieracki v. Seas Shipping Co., supra. See also McCune “Maritime Products Liability”, 18 Hastings L.J. 831 (1967). The indication in admiralty is that it draws upon and incorporates the law prevailing on land when there is no statutory or historic principle to the contrary. Igneri v. Cie. de Transports Oceaniques, 323 F.2d 257 (2d Cir.) cert. den. 376 U.S. 949, 84 S.Ct. 965, 11 L. Ed.2d 969 (1963). See also, McKee v. Brunswick Corp., 354 F.2d 577 (7th Cir. 1965). There is no reason for admiralty not to move with the great majority of land cases that hold that a third party may recover from a manufacturer on a products liability theory. The Supreme Court recognized in Simpson Timber Co. v. Parks, 369 F.2d 324 (9th Cir. 1966) cert. granted, vacated and remanded, 388 U.S. 459, 87 S.Ct. 2115, 18 L.Ed.2d 1319 (1967) ; 390 F.2d 353 (9th Cir. 1968), that products liability will lie within admiralty jurisdiction. See also, Sevits v. McKiernan-Terry Corp., supra, Middleton v. United Aircraft Corp., 204 F. Supp. 856 (SDNY 1960), and Schaeffer v. Michigan-Ohio Navigation Co., 416 F.2d 217 (6th Cir. 1969). The Court further finds that even though the defendants’ (NASSCO) tortious conduct occurred on land, admiralty has jurisdiction on all maritime torts. It was stated without equivocation in Dunn v. Wheeler Shipbuilding Corp., 86 F.Supp. 659 (EDNY 1949), “that which the libels portray is clearly a maritime tort, i.e., the alleged error in design, although originating on land, became manifest, if at all, upon the high seas.” Granted, the present case was not one of defective design, but nevertheless the act on land was the cause in fact of the damage on the seas. Admiralty jurisdiction is proper even though the negligent act occurs on land. The damage was inflicted at a point within admiralty jurisdiction. See, Patel Cotton Co. v. The Steel Traveler, 111 F. Supp. 821 (SDNY 1953); Todd Shipyards Corp. v. United States, 69 F.Supp. 609 (D.Me.1947); The S. S. Samovar," }, { "docid": "5527032", "title": "", "text": "law with its statutes of frauds. Counsel distinguished the Kossick guarantee as being one for a primary debt, that is, a debt owed by one party in controversy for which the same party is ultimately and independently liable to the plaintiff litigant. This situation, he argued, is to be contrasted with the instance of a guarantee for the debt of a third party, the debt of another, a party not in present controversy. Counsel advised us that this is the very situation for which all statutes of frauds were designed. He concluded that any benefit the alleged promisor, Moore for Containerships, would receive from the contract must surely be regarded as indirect and collateral in nature, thus leaving the mandate of the statute of frauds in full force against the enforceability of such an oral contract. Upon review and consideration of the case law, we choose to agree with defendant’s analysis. First, on the nature of a maritime contract, it has long been held that if a contract relates to a ship in its use as such, or to commerce in navigable waters, such a contract is the subject of maritime law and the case is within admiralty jurisdiction, whether the performance of the contract is to occur on land or at sea. Martran Steamship Co. v. Aegean Tankers, Ltd., 170 F.Supp. 477 at 478 (S.D.N.Y.1959), citing Compania Argentina De Navegacion Dodero v. Atlas Maritime Corp., 144 F.Supp. 13 (S.D.N.Y.1956). But this general rule does not go without limitation: It is generally true that a bond securing the performance of a charter party is not a maritime contract within the jurisdiction of Admiralty and that a surety company executing such bond may not be sued thereon in admiralty. Pacific Surety Company v. Leatham and Smith Towing and Wrecking Company, 7 Cir., 1907, 151 F. 440; Eadie v. North Pacific S.S. Co., D.C.N.D.Cal.1914, 217 F. 662. In the Pacific Surety Co. [151 F. 441] case the court said: ‘That the charter party was a maritime contract and the undertaking of the charterer was for maritime service and transactions is unquestionable. *" }, { "docid": "8477797", "title": "", "text": "in a different position from that of a party who is not in any way guilty of actual fault and is found only technically responsible for the negligent act of the indemnitor. Tri-State Oil Tool v. Delta Marine, 5th Cir. 1969, 410 F.2d 178; General Electric v. Cuban American, 5th Cir. 1968, 396 F.2d 89. Truxillo v. Gentilly Medical Bldg., Inc., La.App.1969, 225 So.2d 488, at 495-496. Creole's position was not simply the position of one who installs equipment defectively manufactured by another; here it was in the position of an expert upon whom HNO relied, and who represented that the operations could continue with caution. VI. APPLICABLE LAW: ADMIRALTY A. CREOLE The contract between HNO „ and Creole was to make repairs to equipment aboard a vessel in navigation. This was a maritime contract. North Pacific Steamship Company v. Hall Brothers Railway & Shipbuilding Co., 1919, 249 U.S. 119, 39 S.Ct. 221, 63 L.Ed. 510; Alcoa Steamship Co. v. Charles Ferran & Co., 5 Cir. 1967, 383 F.2d 46; Sieula Oceanica, S. A. v. Wilmar Marine Eng. & Sales Corp., 5 Cir. 1969, 413 F.2d 1332; Gilmore & Black, The Law of Admiralty, 21 (1957). Those who repair a vessel or the equipment aboard it make a warranty, the implied warranty of workmanlike performance. Alcoa Steamship Co. v. Charles Ferran & Company, 5 Cir. 1967, 383 F.2d 46; Sieula Oceanica, S. A. v. Wilmar Marine Eng. & Sales Corp., 5 Cir. 1969, 413 F.2d 1332. The rule is set forth succinctly in Alcoa, supra: “It is well settled that a contract to repair a vessel is maritime . Consequently, a shipowner has a maritime cause of action whether he sues in contract for a breach of warranty of workmanlike service or in tort for the negligent performance of a maritime contract Federal law governs the construction of the terms of the repair contract, . . . and would also appear to govern the standard of performance due under the contract For the reasons set forth above, Creole did not perform its work in a workmanlike manner. It failed to" }, { "docid": "23402317", "title": "", "text": "the correct law to be applied to this case is expressed in Restatement (Second) of Torts § 402-A (1965), as it is the best expression of the doctrine as it is generally applied, and for the additional reason that several federal courts have previously used that section in maritime cases. McKee v. Brunswick Corp., 354 F.2d 577, 584 (7th Cir. 1965); Ohio Barge Line, Inc. v. Dravo Corp., 326 F.Supp. 863, 865 (W.D.Pa.1971); Soileau v. Nicklos Drilling Co., 302 F.Supp. 119, 127 (W.D.La.1969). The doctrine as enunciated in the Restatement has been approved and applied by a number of state courts. [cites omitted] We think the doctrine of strict liability in tort has been accepted and adopted by a sufficient number of states so that it is now . a part of tort case law that should be embraced by federal maritime law. This also fulfills one of the primary goals of maritime law, uniformity.” (460 F.2d 636-37). And, in Schaeffer v. Michigan-Ohio Navigation Co., 416 F.2d 217 (6th Cir. 1969), that court held: “We believe that a products liability claim will lie in admiralty court.” (416 F.2d at 221) Accord: McKee v. Brunswick Corp., 354 F.2d 577, 584 (7th Cir. 1965); Streatch v. Assoc. Container Transp. Ltd., 388 F.Supp. 935 (D.C.Cal.1975); Renner v. Rockwell International Corp., 403 F.Supp. 849 (C.D.Cal.1975); Sears, Roebuck and Co. v. American President Lines, Ltd., 345 F.Supp. 395 (N.D.Cal.1971); Taisho Fire & Marine v. Vessel Montana, 335 F.Supp. 1238 (N.D.Cal.1971); In re Alamo Chemical Trans. Co., 320 F.Supp. 631 (S.D.Tex.1970). See also, Sanderlin v. Old Dominion Stevedoring Corp., 385 F.2d 79 (4th Cir. 1967); Houston-New Orleans, Inc. v. Page Engineering Co., 353 F.Supp. 890 (E.D.La.1972); and, McCune, “Maritime Products Liability.” 18 Hastings L.J. 831-868 (1967). Cf., Sieracki v. Seas Shipping Co., 149 F.2d 98 (3rd Cir. 1945), aff’d, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946). As these authorities suggest, and we so hold, an action based on strict products liability will lie in admiralty. And since Section 402-A of the Restatement (Second) of Torts is the best and most widely-accepted expression of" }, { "docid": "8477799", "title": "", "text": "notice that the resistors were improper and it failed to give an adequate warning. Both of these would have been done had the service been workmanlike. Hence, HNO was much like the patient whose doctor says “your blood pressure is 170/90.” The patient needs to know the significance of this observation. Thus, HNO is also entitled to judgment on the ground of breach of warranty as well as for negligence; both for Creole’s failure to discover the defect and for their failure to warn. B. PAGE The HNO-Page contract is also a maritime one. The HNO-Page contract called for Page to fabricate the console for the dragline aboard the VELMO-R. Page had serviced the dragline aboard the VELMO-R since the vessel was purchased by Houston; it was aware of the collision damages sustained in February, 1967; it knew the console would be installed aboard the VELMO-R. Contracts to furnish supplies or accessories to a particular vessel are maritime in nature even though the supplier does not himself incorporate the product into the ship. The Hiram R. Dixon, EDNY 1887, 33 F. 297; Reed v. Weule, 9 Cir. 1910, 176 F. 660; Linen Thread Company v. Shaw, 1 Cir. 1925, 9 F.2d 17, 1926 A.M.C. 67; Compania Argentina De Nav. D. v. Atlas Maritime Corp., S.D.N.Y.1956, 144 F.Supp. 13, 1957 A.M.C. 100; Martrari Steamship Co. v. Aegean Tankers, Ltd., S.D.N.Y. 1959, 170 F.Supp. 477; Gilmore & Black, The Law of Admiralty, 21 (1957). The locality of initial performance of the contract is not determinative. Even were the contract not a basis for admiralty jurisdiction, jurisdiction would still lie in tort. “Although unknown to admiralty until relatively recent times, a products liability action predicated upon the manufacturer’s negligence undoubtedly will now lie in admiralty.” In re Alamo Transportation Co., S.D.Tex.1970, 320 F.Supp. 631. Middleton v. United Aircraft Corp., S.D.N.Y.1960, 204 F.Supp. 856, 859; Soileau v. Nicklos Drilling Co., W.D.La. 1969, 302 F.Supp. 119; Schaeffer v. Michigan Ohio-Nav. Co., 6th Cir. 1969, 416 F.2d 217. Sevits v. McKiernan-Terry Corp., S.D.N.Y.1966, 264 F.Supp. 810. This doctrine was engrafted from existing state law. As stated" }, { "docid": "2143512", "title": "", "text": "5-23 (1968). Gonzales had control of the premises where the work was performed and they employed, paid and had full power to control the workmen doing the welding. Gonzales furnished the workmen, material, tools, equipment and everything else needed for the welding. Gonzales agreed to do the work either for a specific sum, with reference to the quantity of work they performed, or on a cost-plus basis. Either of these pricing methods tends to show that Gonzales was an independent contractor. The fact that Gonzales was doing work that required special skill for its proper performance tends to show that the relation between Turbine Service and Gonzales was not that of master and servant. Finally, Gonzales had the right to choose its own employees and servants to carry on the work, being responsible only to Turbine Service to produce the welded blades according to the contract. See 2 F. Harper and F. James, The Law of Torts 26.11 (1956). . Higginbotham v. Mobil Oil Corp., 545 F.2d 422, 426 n.5 (5th Cir. 1977), rev’d on other grounds, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978); Williams v. Brasea, Inc., Vessel Ciapesc I, 497 F.2d 67, 78 (5th Cir. 1974). . Pan-Alaska Fisheries, Inc. v. Marine Construction and Design Co., 565 F.2d 1129, 1134 (9th Cir. 1977); Lindsay v. McDonnell Douglas Aircraft Corp., 460 F.2d 631, 635 (8th Cir. 1972); Sanderlin v. Old Dominion Stevedoring Corp., 385 F.2d 79, 81 (4th Cir. 1967); Boncich v. M. P. Howlett, Inc., 421 F.Supp. 1300, 1304 (E.D.N.Y.1976); Houston-New Orleans, Inc. v. Page Engineering Co., 353 F.Supp. 890, 899 (E.D.La.1972); Sears, Roebuck & Co. v. American President Lines, Ltd., 345 F.Supp. 395, 402 (N.D.Cal.1971); Ohio Barge Line, Inc. v. Dravo Corp., 326 F.Supp. 863, 865 (W.D.Pa.1971); In re Marine Sulphur Transport. Corp., 312 F.Supp. 1081, 1102 (S.D.N.Y.1970); Soileau v. Nicklos Drilling Co., 302 F.Supp. 119, 127 (W.D.La.1969). . Lindsay v. McDonnell Douglas Aircraft Corp., 460 F.2d 631, 637 (8th Cir. 1972); Schaeffer v. Michigan-Ohio Navigation Co., 416 F.2d 217, 221 (6th Cir. 1969); Sieracki v. Seas Shipping Co., 149 F.2d 98, 99-100 (3rd" }, { "docid": "23421974", "title": "", "text": "and 46 U.S.C. § 766. The Death on the High Seas Act creates a cause of action for wrongful death, 46 U.S.C. § 761 et seq., in favor of designated survivors for the death of a person “caused by wrongful act, neglect, or default occurring on the high seas” and sets the measure of recovery at a fair and just compensation. Under § 766 contributory negligence is not a defense but the doctrine of comparative negligence is applied in reducing the recovery. Jurisdiction of this action would rest in the federal district courts in admiralty. We feel this federal cause of action must follow general maritime law which in turn incorporates the general law of torts where it is harmonious with admiralty law. Cain v. Alpha S. S. Corp., 35 F.2d 717, 722 (2d Cir.1929), aff’d on other grounds, 281 U.S. 642, 50 S.Ct. 443, 74 L.Ed. 1086 (1930); Warshauer v. Lloyd Sabaudo S. A., 71 F.2d 146, 147 (2d Cir.), cert. denied, 293 U.S. 610, 55 S.Ct. 140, 79 L.Ed. 700 (1934); Sieracki v. Seas Shipping Co., 149 F.2d 98, 100 (3d Cir.1945), aff’d, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946). While the doctrine of strict liability in tort (often referred to as doctrine of implied warranty) at its inception did not have the wide acceptance which would justify its incorporation into the general maritime law, Noel v. United Aircraft Corp., 204 F.Supp. 929 (D.Del. 1962), it has gained general acceptance in the intervening years and has been incorporated in admiralty law. Schaeffer v. Michigan-Ohio Navigation Co., 416 F.2d 217 (6th Cir.1969); Ohio Barge Line, Inc. v. Dravo Corp., 326 F.Supp. 863 (W.D.Pa.1971); In re Marine Sulphur Transport Corp., 312 F.Supp. 1081 (S.D.N.Y.1970); Soileau v. Nicklos Drilling Co., 302 F.Supp. 119 (W.D.La. 1969); Krause v. Sud-Aviation, Societe Nationale de Constructions Aeronautiques, 301 F.Supp. 513 (S.D.N.Y.1968), aff’d 413 F.2d 428 (2d Cir.1969). We think now that the doctrine of strict liability in tort is a part of the general maritime law and it is thus available to this plaintiff under the Death on the High Seas Act," }, { "docid": "8477783", "title": "", "text": "ALVIN B. RUBIN, District Judge: This is a suit by the owner of a barge against the supplier of equipment and against the repairman who installed it, both on a theory of negligence and for breach of warranty. Shortly after a new control panel was installed in a crane mounted on a barge, the VELMO-R, in May, 1967, the boom of the crane struck one of the spuds on the barge and caused extensive damage. Houston-New Orleans, Inc. (HNO), the owner of the dragline barge, had ordered the control panel from Page Engineering Co. (Page). Creole Electric Service (Creole) had installed it. HNO contends the damage resulted from defects in the panel supplied by Page and negligence in its installation by Creole. The defendants each contend the operator of the dragline was at fault and that HNO was at fault for operating it; and, alternatively, that the damage resulted from the fault of the other defendant. The trial was repeatedly delayed, the facts have become hazy, the issues are complicated, the briefs are long. But, considered and reconsidered, the evidence now available points to the conclusion that the negligence of all three of the parties contributed to cause the damage, and, as such, damages ought to be shared under the principle of comparative negligence. I — FACTS A. UNCONTESTED FACTS This much is uncontested. In February, 1967, the VELMO-R had a collision with another vessel. The dragline mounted on the barge was damaged, and it was necessary to replace its control panel. HNO ordered a new panel from Page. Meanwhile, it continued to operate the dragline with the original control panel (as repaired by Creole) aboard the barge, which was afloat in navigable waters. In May, HNO received the new control panel in New Orleans, shipped it to a borrow bit on the East Atchafalaya Levee System, near Bayou Sorrel, Louisiana, took the barge off its job, and floated it to the pit. Creole’s employees came there to install the new panel on Friday, May 26, 1967. After Creole had installed the panel, it could not obtain the electrical test" }, { "docid": "2143513", "title": "", "text": "other grounds, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978); Williams v. Brasea, Inc., Vessel Ciapesc I, 497 F.2d 67, 78 (5th Cir. 1974). . Pan-Alaska Fisheries, Inc. v. Marine Construction and Design Co., 565 F.2d 1129, 1134 (9th Cir. 1977); Lindsay v. McDonnell Douglas Aircraft Corp., 460 F.2d 631, 635 (8th Cir. 1972); Sanderlin v. Old Dominion Stevedoring Corp., 385 F.2d 79, 81 (4th Cir. 1967); Boncich v. M. P. Howlett, Inc., 421 F.Supp. 1300, 1304 (E.D.N.Y.1976); Houston-New Orleans, Inc. v. Page Engineering Co., 353 F.Supp. 890, 899 (E.D.La.1972); Sears, Roebuck & Co. v. American President Lines, Ltd., 345 F.Supp. 395, 402 (N.D.Cal.1971); Ohio Barge Line, Inc. v. Dravo Corp., 326 F.Supp. 863, 865 (W.D.Pa.1971); In re Marine Sulphur Transport. Corp., 312 F.Supp. 1081, 1102 (S.D.N.Y.1970); Soileau v. Nicklos Drilling Co., 302 F.Supp. 119, 127 (W.D.La.1969). . Lindsay v. McDonnell Douglas Aircraft Corp., 460 F.2d 631, 637 (8th Cir. 1972); Schaeffer v. Michigan-Ohio Navigation Co., 416 F.2d 217, 221 (6th Cir. 1969); Sieracki v. Seas Shipping Co., 149 F.2d 98, 99-100 (3rd Cir. 1945); Houston-New Orleans, Inc. v. Page Engineering Co., 353 F.Supp. 890, 899 (E.D.La. 1972); In re Alamo Chemical Transportation Co., 320 F.Supp. 631, 639 (S.D.Tex.1970); Soileau v. Nicklos Drilling Co., 302 F.Supp. 119, 127 (W.D.La.1969). . “[I]n our view Ryan, by necessary implication, confirmed the applicability to maritime service contracts of the hornbook rule of contract law that one who contracts to provide services impliedly agrees to perform in a diligent and workmanlike manner. 9 S. Williston, Contracts § 1012C, at 38-39 (3d ed. Jaeger 1967). This obligation has been implied in contracts ranging from an ordinary construction contract, Henggeler v. Jindra, 191 Neb. 317, 214 N.W.2d 925 (1974), to a contract to install plumbing, In re Estate of Talbott, 184 Kan. 501, 337 P.2d 986 (1959), to a contract to tan goat skins, William Beaden Kopf Co. v. Henwood & Nowak, Inc., 14 F.2d 125 (D.Mass.1926), and there is no reason why it should not be implied in maritime service contracts as well.” Fairmont Ship. Corp. v. Chevron Int. Oil, Inc., 511 F.2d" }, { "docid": "20084990", "title": "", "text": "agreement sued on is not such as to be considered a maritime contract. Ordinarily, a contract relating to a ship in ' its use as such or to commerce on navigable waters is subject to the maritime law and the case is one of admiralty or maritime jurisdiction whether the contract'is ¡ one to be performed on land or water.'-1: Benedict, Admiralty 130 (6th.ed',, 1940); -see James Richardson & Sons v. Conners Marine Co., 2 Cir., 1944, 141 F.2d 226. So, contracts providing'for thq repair of a particular ship or for supplies for • a'particular ship have been held to bes within the maritime jurisdiction of the, Federal Courts. The Electron, D.C.S.D.N.Y.1891, 48 F. 689; Reed v. Weule, 9 Cir., 1910, 176 F. 660; The Hiram R. Dixon, D.C.E.D.N.Y.1887, 33 F. 297; Linen Thread Co. v. Shaw, 1 Cir., 1925, 9 F.2d 17. • The cases relied upon by respondent, relate to agreements to supply the owner of several steamships all the .fuel' re-'' quired by the steamships for a period, 'of■■ time. In those cases,' no -particular vésSéL and no particular voyage was in the con-; \"templation of either of the parties. See Steamship Overdale Co. v. Turner, D.C. E.D.Pa.1913, 206 F. 339, 341; Garcia v. Warner Quinlan Co., D.C.S.D.N.Y.1934, 9 F.Supp. 1010. The libel in the instant action alleges a contract to provide certain auxiliary equipment for marine boilers for a particular ocean-going ship to be delivered at a particular time. As such, it alleges an action which is within the admiralty jurisdiction of this Court. The exception to the libel is overruled. , • So ordered." } ]

[ { "docid": "23399650", "title": "", "text": "prejudice on the part of the trial judge, the facts stated in the affidavit as the basis for the belief that bias or prejudice exists must be accepted as true by the judge even though he or she knows the statements to be false. Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1931); Rosen v. Sugarman, 357 F.2d 794 (2d Cir. 1966); Korer v. Hoffman, 212 F.2d 211 (7th Cir. 1954). However, the trial judge must at the outset determine whether the facts so stated would constitute legally sufficient grounds for recusal, Berger v. United States, supra; Rosen v. Sugarman, supra; Simmons v. United States, 302 F.2d 71, 75 (3d Cir. 1962); Albert v. United States District Court, 283 F.2d 61 (6th Cir. 1960), and if the affidavit is insufficient, he is under just as much of a duty to deny the application as he would be to recuse himself if it were sufficient, Rosen v. Sugarman, supra, 357 F.2d at 799; In re Union Leader Corp., 292 F.2d 381, 391 (1st Cir.), cert. denied, 368 U.S. 927, 82 S.Ct. 361, 7 L.Ed.2d 190 (1961). Mere conclusions, opinions, rumors or vague gossip are insufficient. Berger v. United States, supra, 255 U.S. at 34, 41 S.Ct. 230; Simmons v. United States, supra, 302 F.2d at 75. To be sufficient the affidavit must set forth facts, including the time, place, persons and circumstances, and, where based upon an extra-judicial statement of the judge, the substance of that statement. Berger v. United States, supra, 255 U.S. at 34, 41 S.Ct. 230; Wapnick v. United States, 311 F.Supp. 183, 184-185 (E.D.N.Y. 1969). Applying these time-honored standards to the present case, the affidavit in support of the application for recusal is plainly insufficient on its face. At most it sets forth conclusions and opinions expressed by Godfrey P. Schmidt, the JSC’s attorney in other cases, which are unsupported by any statements of fact. At least one of the statements attributed to Schmidt — that Judge Motley “was good for the JSC and had an understanding for their case” — does" } ]

[ { "docid": "66869", "title": "", "text": "of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding. “The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.” The mere filing of an affidavit under this section does not automatically disqualify a judge. Behr v. Mine Safety Appliances Co., 233 F.2d 371 (C.A.3), cert. denied, 352 U.S. 942, 77 S.Ct. 264, 1 L.Ed.2d 237 (1956). Disqualification results only from the filing of a timely and sufficient affidavit. Brotherhood of Locomotive Firemen and Enginemen v. Bangor and Aroostook R. Co., 127 U.S.App.D.C. 23, 380 F.2d 570, cert. denied per curiam, 389 U.S. 327, 88 S.Ct. 437, 19 L.Ed.2d 560 (1967). It is the duty of the judge against whom a section 144 affidavit is filed to pass upon the legal sufficiency of the facts alleged. Simmons v. United States, 302 F.2d 71 (C.A.3, 1962). Neither the truth of the allegations nor the good faith of the pleader may be questioned. Simmons, supra. “[T]he section withdraws from the presiding judge a decision upon the truth of the matters alleged.” Berger v. United States, 255 U.S. 22, 36, 41 S.Ct. 230, 234, 65 L.Ed. 481 (1921); see Parker Precision Products Co. v. Metropolitan Life Ins. Co., 407 F.2d 1070 (C.A.3, 1969). To warrant disqualification the affidavit “must give fair support to the charge of a bent of mind that may pre vent or impede impartiality of judgment.” Berger, supra, 255 U.S. at 33-34, 41 S.Ct. at 233. Clearly, more than mere conclusions are required. Inland Freight Lines v. United States, 202 F.2d 169 (C.A.10, 1953). Facts including time, place, persons, and circumstances must be set forth." }, { "docid": "7303502", "title": "", "text": "E.g., United States v. Jeffers, 532 F.2d 1101, 1112 (7th Cir.1976), aff'd in part and vacated in part, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977). An affidavit is sufficient if it avers facts that, if true, would convince a reasonable person that bias exists. United States v. Baskes, 687 F.2d 165, 170 (7th Cir.1981) (per curiam). The factual averments must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment. Berger v. United States, 255 U.S. 22, 33-34, 41 S.Ct. 230, 233, 65 L.Ed. 481 (1921). They must not, however, be mere conclusions, opinions, or rumors. United States v. Haldeman, 559 F.2d 31, 134 (D.C.Cir.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977). They must be stated with particularity, id. [559 F.2d] at 131, and must be definite as to times, places, persons, and circumstances. Id. at 134. The factual averments must show that the bias is personal rather than judicial, United States v. Patrick, 542 F.2d 381, 390 (7th Cir.1976), cert. denied, 430 U.S. 931, 97 S.Ct. 1551, 51 L.Ed.2d 775 (1977), and that it stems from an extrajudicial source-some source other than what the judge has learned through participation in the case. United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966).” United States v. Balistrieri, 779 F.2d 1191, 1199 (7th Cir.1985) (footnote omitted). Moreover, the affidavit must “be accompanied by a certificate of counsel of record stating that it is made in good faith.” 28 U.S.C. § 144. Judge Moody’s refusal to hold a hearing on the recusal motion was based on his determination that Barnes had failed to comply with both the procedural and substantive requirements of section 144. Specifically, the trial court, noted: (1) Barnes’ failure to present his letters relating the alleged bias until the morning of trial; (2) his failure to file both an affidavit and a certificate of good faith from his attorney; and (3) the letters’ allegations of bias based entirely on previous proceedings over which Judge Moody" }, { "docid": "20565970", "title": "", "text": "27 S.Ct. 165, 167, 51 L.Ed. 319, 324 (1906) (Holmes, J.). Similarly, a litigant’s case must stand on its own merits and not depend on being heard by any particular judge. THE APPLICABLE LAW In passing upon a motion to recuse on the grounds of bias or prejudice the facts alleged in the affidavit are taken as true, Berger v. United States, ,255 U.S. 22, 33-35, 41 S.Ct. 230, 233, 65 L.Ed. 481, 485 (1921), and the judge to whom the motion is presented determines only the legal sufficiency and timeliness of the affidavit and the certificate of counsel. Berger, supra, 255 U.S. at 33, 36, 41 S.Ct. at 233, 234, 65 L.Ed. at 485, 486; Albert v. United States District Court, for Western District of Michigan, 283 F.2d 61, 62 (6th Cir. 1960), cert. denied, 365 U.S. 828, 81 S.Ct. 713, 5 L.Ed.2d 706 (1961). Where the affidavit and certificate pass the dual tests of sufficiency and timeliness the motion to recuse must be granted though the judge knows for a certainty that the allegations of prejudice and bias are false. Morse v. Lewis, 54 F.2d 1027, 1031 (4th Cir.), cert. denied, 286 U.S. 557, 52 S.Ct. 640, 76 L.Ed. 1291 (1932). The affidavit, however, is strictly construed against the affiant, for a judge is presumed to be impartial. Beland v. United States, 117 F.2d 958, 960 (5th Cir.), cert. denied, 313 U.S. 585, 61 S.Ct. 1110, 85 L.Ed. 1541 (1941). The affidavit and certificate of counsel were timely filed on February 14, 1972, within the delay permitted by this court for the filing of special pleadings. The sufficiency of the affidavit, however, is quite another matter. Section 144 requires a “sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice . . . .” (Emphasis added.) Personal bias is defined as an attitude of extrajudicial origin. United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778, 793 (1966). Neither prior judicial exposure to a de fendant nor prior judicial rulings adverse to a defendant constitute" }, { "docid": "10717581", "title": "", "text": "7. That the Court, with the consent of plaintiff’s attorney, conferred privately with defense counsel on a number of occasions “but never conferred privately with plaintiff’s counsel”. As will be seen from the above, plaintiff and her attorney’s affidavit set forth no legal grounds for disqualification. Each alleged wrongful act and statement of the Court had its claimed genesis and occurred in the course of the trial itself. Indeed they were, in essence, (with one exception hereinafter discussed), adverse rulings by the Court or admonitions to a plaintiff, who professed to be a trial attorney, to act properly as a witness in court. Under such circumstances, the Supreme Court has repeatedly held that there is no legal basis for recusal. Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921); Ex parte American Steel Barrel Co., 230 U.S. 35, 33 S.Ct. 1007, 57 L.Ed. 1379 (1913); United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966); Mitchell v. Sirica, 502 F.2d 375 (D.C.Cir.), cert. denied 418 U.S. 955, 94 S.Ct. 3232, 41 L.Ed.2d 1177 (1974). In the Berger case, the Supreme Court said (255 U.S. at pp. 31 and 34, 41 S.Ct. at p. 232): “In Ex parte American Steel Barrel Co., 230 U.S. 35 [33 S.Ct. 1007, 57 L. Ed. 1379], ****** The case establishes that the bias or prejudice which can be urged against a judge must be based upon something other than rulings in the case. ****** “ * * * The section permits only the affidavit of a party, and Ex parte American Steel Barrel Co., supra, decides, that it must be based upon facts antedating the trial, not those occuring during the trial.” In Grinnell (a non-jury antitrust case) more recently it held (384 U.S. at p. 583, 86 S.Ct. at p. 1710): “The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.” Within the past month the" }, { "docid": "452133", "title": "", "text": "in Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921), in relation to the predecessor of the instant statute and have been consistently applied in this circuit. See, e. g., Wolfson v. Palmieri, 396 F.2d 121 (2d Cir. 1968); Rosen v. Sugarman, 357 F.2d 794 (2d Cir. 1966). As the court stated in Rosen: “Although the facts stated in the affidavit are to be taken as true, the judge may inquire into their legal sufficiency. Indeed he must do so. There is ‘as much obligation upon a judge not to recuse himself when there is no occasion as there is for him to do so when there is,’ In re Union Leader Corp., 292 F.2d 381, 391 (1 Cir.), cert. denied 368 U.S. 927, 82 S.Ct. 361, 7 L.Ed. 190 (1961); . . . To be sufficient an affidavit must show ‘the objectionable inclination or disposition of the judge’; it must give ‘fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.’ [Berger v. United States,] 255 U.S. [22] at 33-35, 41 S.Ct. [230] at 233 [65 L.Ed. 481].” Id. at 797; accord, Wolfson v. Palmieri, supra, 396 F.2d at 124. In addition, the alleged bias must be “personal” and “stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.” United States v. Grinell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966); accord, United States v. Wolfson, 558 F.2d 59, 62 (2d Cir. 1977); United States v. Corr, 434 F.Supp. 408, 411-12 (S.D.N.Y.1977) (Weinfeld, J.). Initially, I point out that defendants’ affidavit is defective in that it is not filed by “a party” to this proceeding, see 28 U.S.C. § 144, but by counsel. This defect is in and of itself sufficient grounds to warrant denial of the instant motion, Giebe v. Pence, 431 F.2d 942 (9th Cir. 1970) (per curiam). However, since the impartiality of the court has been questioned, it is important" }, { "docid": "22266671", "title": "", "text": "judge to recuse himself if a party files a timely and sufficient affidavit that the judge has “a personal bias or prejudice” against him. The law is clear that in passing on the legal sufficiency of the affidavit, the judge must assume that the factual averments it contains are true, even if he knows them to be false. E.g., United States v. Jeffers, 532 F.2d 1101, 1112 (7th Cir.1976), aff'd in part and vacated in part, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977). An affidavit is sufficient if it avers facts that, if true, would convince a reasonable person that bias exists. United States v. Bashes, 687 F.2d 165, 170 (7th Cir.1981) (per curiam). The factual averments must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment. Berger v. United States, 255 U.S. 22, 33-34, 41 S.Ct. 230, 233, 65 L.Ed. 481 (1921). They must not, however, be mere conclusions, opinions, or rumors. United States v. Haldeman, 559 F.2d 31, 134 (D.C. Cir.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977). They must be stated with particularity, id. at 131, and must be definite as to times, places, persons, and circumstances. Id. at 134. The factual averments must show that the bias is personal rather than judicial, United States v. Patrick, 542 F.2d 381, 390 (7th Cir.1976), cert. denied, 430 U.S. 931, 97 S.Ct. 1551, 51 L.Ed.2d 775 (1977), and that it stems from an extrajudicial source — some source other than what the judge has learned through participation in the case. United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966). In view of the requirement that the judge assume that the facts are as stated in the affidavit, the statute, while not quite conferring a right of peremptory challenge, is heavily weighed in favor of recusal. Doubtless recognizing that so powerful an instrument could easily be abused, Congress imposed certain strict limitations and conditions to minimize that possibility. The affidavit must be timely, and" }, { "docid": "22925635", "title": "", "text": "substance of defendants’ affidavits is identical and sets forth as reasons for the belief that bias or prejudice exists: at the sentencing of Riley, Judge Meredith stated that the defendants planned the robbery of the Chippewa Trust Company, the defendants solicited and induced Riley to participate in the robbery, defendant Mixen wrote the note used in connection with the robbery, and the defendants were persons deserving of severe punishment. Defendants rely on Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L. Ed. 481 (1921), which held that when presented with an affidavit of prejudice a judge may not pass upon the truth or falsity of the allegations therein, but must accept them as true for the purpose of passing upon the legal sufficiency of the affidavit. Defendants urge that under Berger supra, Judge Meredith erroneously failed to disqualify himself, the requisite statutory averment of personal bias and prejudice being sworn to. We disagree. Judge Meredith’s remarks were made after the first trial of defendants where a jury found them guilty of the robbery and conspiracy charges against them. Judge Meredith’s remarks at the sentencing of the confessed co-conspirator, Riley, regarding defendants’ participation in the robbery were in essence restatements of what the jury had found defendants guilty of. “The bias contemplated by 28 U.S.C.A. § 144 is a personal bias, extrajudicial in origin, that a judge may have against a particular defendant.” Hodgdon v. United States, 365 F.2d 679, 686 (8 Cir.1966), cert. denied 385 U.S. 1029, 87 S.Ct. 759, 17 L.Ed.2d 676. In United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966), the Supreme Court defined the showing necessary under Berger stating: “The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.” We do not believe the sentencing of Riley to be a proceeding separate and distinct from defendants’ first trial as defendants assert, and Judge Meredith’s remarks pertaining to defendants’ guilt" }, { "docid": "8629059", "title": "", "text": "under section 144 is whether assuming the truth of the facts alleged, a reasonable person would conclude that a particular judge is biased or prejudiced against a particular defendant. Mims v. Shapp, 541 F.2d 415, 417 (3d Cir. 1976); Parrish v. Board of Commissioners, 524 F.2d 98, 100 (5th Cir. 1975), cert. denied, Davis v. Board of School Commissioners of Mobile County, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976); United States v. Thompson, 483 F.2d at 528; United States v. Devlin, 284 F.Supp. at 481. There is a substantial burden on a defendant to prove that a judge is not qualified or impartial. Molinaro v. Watkins-Johnson CEI Division, 359 F.Supp. at 476; United States v. Thomas, 299 F.Supp. at 498. Moreover, the defendant must establish that the alleged bias and prejudice is personal, stemming from an extrajudicial source and resulting in an opinion on the merits other than what the judge has learned from his participation in the case. United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966); United States v. Bernstein, 533 F.2d 775, 785 (2d Cir.), cert. denied, 429 U.S. 998, 97 S.Ct. 523, 50 L.Ed.2d 608 (1976); Davis v. Board of School Commissioners, 517 F.2d at 1051; Duffield v. Charleston Area Medical Center, Inc., 503 F.2d at 517; United States v. English, 501 F.2d 1254, 1263 (7th Cir.), cert. denied, 419 U.S. 1114, 95 S.Ct. 791, 42 L.Ed.2d 811 (1975); United States v. Beneke, 449 F.2d 1259, 1260 (8th Cir. 1971); Davis v. Cities Service Oil Co., 420 F.2d at 1282; Knapp v. Kinsey, 232 F.2d at 466. Personal bias involves antagonism or animosity towards the affiant. United States v. Nehas, 368 F.Supp. 435, 437 (W.D.Pa.1973). The mere fact that a judge has made an adverse ruling to a particular defendant during the course of the present judicial proceedings, has accepted the guilty plea of a codefendant or co-conspirator, or has had prior judicial exposure to a defendant does not establish bias or prejudice on the part of a judge. Berger v. United States, 255 U.S. 22," }, { "docid": "15412475", "title": "", "text": "reads: Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding. The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith. The Supreme Court, in Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921), construed a predecessor statute to mean that, although the challenged judge may not pass upon the truth of the facts alleged in the affidavit, he may decide whether the affidavit meets the procedural requirements of the statute and whether the facts alleged give fair support to the charge of bias and prejudice. By retaining the basic provisions of this earlier statute in the present § 144, Congress apparently acquiesced in the procedure whereby a challenged judge may initially pass upon the legal sufficiency of the affidavit. See, Note, Disqualification of Judges, 79 Harv.L.Rev. 1435, 1438-1439 (1966); Schwartz, Disqualification for Bias in the Federal District Courts, 11 U.Pitt.L.Rev. 415, 423 (1950). Petitioners have raised no question concerning the procedure followed by Judge Lord in passing upon the legal sufficiency of the affidavit. The statutory concept of “personal bias or prejudice” was explained by the Supreme Court in United States v. Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966): The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other" }, { "docid": "23381820", "title": "", "text": "itself if they “ ‘give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.’” United States v. Townsend, 478 F.2d 1072, 1073-74 (3d Cir.1973) (quoting Berger v. United States, 255 U.S. 22, 33-34, 41 S.Ct. 230, 233, 65 L.Ed. 481 (1921)). Only bias which is personal or extrajudicial in nature is disqualifying. Johnson v. Trueblood, 629 F.2d 287, 290-91 (3d Cir.1980); Mims, 541 F.2d at 417. Vespe’s affidavit states that the district court ordered the government’s attorney to produce two witnesses to testify before the court on the alleged incident and invited the United States Attorney to conduct, or assist in conducting, an investigation. App. at a982. When this invitation was declined, the affidavit continues, the court “personally conducted what it termed an ‘investigation’ into possible wrongdoing by me, including intimidation of witnesses” and on or about the same date informed the parties that it would refer its “investigation” to the United States Attorney’s Office. Id. Vespe further averred that one witness was issued Miranda warnings and that the “ ‘investigation’ was not, to my knowledge or through any indication by the Court, in the nature of a contempt proceeding but was instead for the potential benefit and use of U.S. Attorney’s Office.” Id. Disregarding Vespe’s speculation as to the purpose of the proceedings, these allegations would not suggest to a reasonable person that the district court harbored a personal bias against Vespe. The district court acted in response to a claim that a witness in the action before it may have been intimidated. Nothing in the affidavit suggests that the court’s actions in conducting the hearing were influenced by its attitude toward Vespe rather than by the nature of the alleged incident. See Mims, 541 F.2d at 417 (defining personal bias for purposes of that case as “an attitude toward petitioner that is significantly different from and more particularized than the normal, general feelings of society at large”). The affidavit reveals only an effort to ensure the integrity of the judicial process. Regardless of the wisdom of the means chosen," }, { "docid": "20817951", "title": "", "text": "Co., 233 F.2d 371, 373 (C.A. 3, 1956); Simmons v. United States, 302 F.2d 71, 75 (C.A. 3, 1962). The statute specifies that “personal” bias is the sole ground of disqualification. This involves antagonism or animosity toward the affiant, or favoritism towards the adverse party. Berger v. United States, 255 U.S. 22, 32, 41 S.Ct. 230, 65 L.Ed. 481 (1921); Cole v. Loew’s Inc., 76 F.Supp. 872, 877 (S. D.Cal.1948). Personal bias is to be distinguished from “judicial” bias, and does not include views based upon matters arising during the course of the litigation or upon general attitudes common to the public generally. United States v. Gilboy, 162 F.Supp. 384, 394 (M.D.Pa.1958); Knapp v. Kinsey, 232 F.2d 458, 466 (C.A. 6, 1956); Cole v. Loew’s Inc., 76 F.Supp. 872, 877 (S.D. Cal.1948). In particular, views relating to legal questions, even strongly-held views in favor of law-enforcement, do not amount to personal bias. Knapp, supra, 232 F.2d at 466; United States v. Valenti, 120 F.Supp. 80, 85-86 (D.N.J. 1954); Baskin v. Brown, 174 F.2d 391, 394 (C.A. 4, 1949); Cole v. Loew’s Inc., 76 F.Supp. 872, 876-877 (S.D.Cal.1948). Likewise, the severity of a sentence (within the statutory spectrum) is no indication of personal bias. Knapp, supra, 232 F.2d at 466; Calvaresi v. United States, 216 F.2d 891, 900 (C.A. 10, 1954). Applying these principles to the case at bar, it seems clear that the allegations in the affidavit do not amount to a sufficient description of personal bias. At most, nothing but “judicial bias” or zeal for enforcement of enacted law and the policies of Congress embodied therein is established. Under the authorities outlined above, this is not enough. The allegations of the affidavit in substance boil down to two: that in draft cases the Court imposes severe sentences, and is often reversed. It is true that this Court considers violation of the draft laws to be a serious offense (contrary to the views of the head of the parole board, as stated in a recent interview in the New York Times). The constitutionally conferred power “To raise and support Armies”" }, { "docid": "20817950", "title": "", "text": "ground of disqualification is demonstrated. In accordance with the language of the statute, and cases construing it, the following procedure is to be observed. The filing of the affidavit does not itself automatically effect the ouster. Instead the legal sufficiency of the facts alleged (as distinguished from conclusionary assertions) must be passed upon by the target judge. He accepts as true the facts alleged, as on a common law demurrer, and determines merely their legal adequacy. He does not determine the truth of the allegations. In fact no one ever passes upon the truthfulness of the allegations. As stated by Judge Yankwich in Cole v. Loew’s Inc., 76 F.Supp. 872, 877 (S.D.Cal.1948), “the truth of the affidavit cannot be adjudicated by the judge involved or anyone else.” If the target judge finds them legally sufficient, then the disqualification is automatically effected. His determination is an interlocutory ruling reviewable on appeal along with other alleged errors in connection with the trial. Green v. Murphy, 259 F.2d 591, 593-594 (C.A. 3, 1958); Behr v. Mine Safety Appliance Co., 233 F.2d 371, 373 (C.A. 3, 1956); Simmons v. United States, 302 F.2d 71, 75 (C.A. 3, 1962). The statute specifies that “personal” bias is the sole ground of disqualification. This involves antagonism or animosity toward the affiant, or favoritism towards the adverse party. Berger v. United States, 255 U.S. 22, 32, 41 S.Ct. 230, 65 L.Ed. 481 (1921); Cole v. Loew’s Inc., 76 F.Supp. 872, 877 (S. D.Cal.1948). Personal bias is to be distinguished from “judicial” bias, and does not include views based upon matters arising during the course of the litigation or upon general attitudes common to the public generally. United States v. Gilboy, 162 F.Supp. 384, 394 (M.D.Pa.1958); Knapp v. Kinsey, 232 F.2d 458, 466 (C.A. 6, 1956); Cole v. Loew’s Inc., 76 F.Supp. 872, 877 (S.D. Cal.1948). In particular, views relating to legal questions, even strongly-held views in favor of law-enforcement, do not amount to personal bias. Knapp, supra, 232 F.2d at 466; United States v. Valenti, 120 F.Supp. 80, 85-86 (D.N.J. 1954); Baskin v. Brown, 174 F.2d 391, 394" }, { "docid": "23339650", "title": "", "text": "L.Ed.2d 188 (1976). The formula for legal sufficiency adopted by this Court requires defendant to show: 1. The facts are material and stated with particularity. 2. The facts are such that, if true they would convince a reasonable person that a bias exists. 3. The facts show the bias is personal, as opposed to judicial, in nature. Parrish v. Board of Commissioners of Alabama State Bar, 524 F.2d 98, 100 (5th Cir. 1975) (en banc), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976). We conclude that Judge Hodges properly denied the motions to disqualify because the alleged bias was judicial rather than personal and because the facts in the affidavit would not have convinced a reasonable person of the existence of personal bias against the defendants. To be disqualifying, the alleged bias of prejudice must stem from an extrajudicial source. United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966); Davis v. Board of School Commissioners, 517 F.2d at 1051 (origin of alleged bias was language in order then before the court and an opinion in a previous case). See, e. g., Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921) (prejudice against German-Americans). Reading Judge Hodges’ remarks in context clearly demonstrates that any predisposition to sentence volume drug offenders severely stemmed from his observations in a strictly judicial capacity as to the volume of such cases in the courts and the lack of deterrent effect of light sentences for such offenders. See also United States v. Johnson, 537 F.2d 1170, 1175 (4th Cir. 1976) (district judge’s announced belief heroin distribution deserved severe punishment did not disqualify him from conducting retrial); Baskin v. Brown, 174 F.2d 391, 394 (4th Cir. 1949) (in racial discrimination suit affidavits showed, at most, judge’s zeal for upholding blacks’ rights and indignation at attempts to deny them, and statute never contemplated disqualification for bias against wrongdoers acquired from evidence presented in the course of judicial proceedings before him); Smith v. Danyo, 441 F.Supp. 171, 180 (M.D.Pa.1977), aff’d, 585 F.2d 83" }, { "docid": "22356771", "title": "", "text": "the judge and the claim of bias on behalf of the particular parties here is too attenuated to require disqualification. Once the motion is filed under § 144, the judge must pass on the legal sufficiency of the affidavit, but may not pass on the truth of the matters alleged. See Berger v. United States, 1921, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481; United States v. Roca-Alvarez, 5 Cir., 1971, 451 F.2d 843, 847—48; United States v. Townsend, 3 Cir., 1973, 478 F.2d 1072. The affidavits were found legally insuf ficient here and we agree. The truth of the matters alleged was not in issue. These were in substance lawyer motions as distinguished from party motions. Moreover, aside from the doubtful showing of personal bias by Foster and Buskey, they are foreclosed for another reason. It is settled that the requisite basis of bias and prejudice under § 144 must be extra-judicial. See United States v. Grinned Corp., 1966, 384 U.S. 563, 583, 86 S.Ct. 1698, 16 L.Ed.2d 778, 793; Berger v. United States, 1921, 255 U.S. 22, 31, 41 S.Ct. 230, 65 L.Ed. 481, 484. The controversy with the lawyers in the present case was not extra-: judicial. Rather, it was very much judicial, consisting of language in an order in the very case before the court, and in an opinion in another case before the court. Such statements are not available as grounds for a § 144 affidavit. See United States v. Board of School Commissioners, 7 Cir., 1974, 503 F.2d 68, 81; Hanger v. United States, 8 Cir., 1968, 398 F.2d 91, 101; Mirra v. United States, 2 Cir., 1967, 379 F.2d 782, 787-88; Tynan v. United States, 1967, 126 U.S.App.D.C. 206, 376 F.2d 761, 764-65; In re Union Leader Corp., 1 Cir., 1961, 292 F.2d 381, 388-89. Here again, however, we think there is an exception where such pervasive bias and prejudice is shown by otherwise judicial conduct as would constitute bias against a party. But, as stated, supra, we find an insufficient basis for such a finding in the circumstances presented here. But" }, { "docid": "23169082", "title": "", "text": "to do so when there is,’ In re Union Leader Corp., 292 F.2d 381, 391 (1 Cir.), cert. denied, 368 U.S. 927, 82 S.Ct. 361, 7 L. Ed. 190 (1961); * * *. To be sufficient an affidavit must show ‘the objectionable inclination or disposition of the judge’; it must give ‘fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.’ [Berger v. United States,] 255 U.S. at 33-35, 41 S.Ct. at 233.” Petitioners’ allegations in their affidavit of bias and prejudice may fairly be broken down into three categories: (1) comments made at the Continental Enterprises trial; (2) rulings made at the Continental Enterprises trial; and (3) rulings made on pretrial motions, including the present motion for disqualification, in the Merritt-Chapman & Scott case. Section 144 itself provides that the bias sufficient to disqualify must be “personal.” It has been said that “ ‘Personal’ is in contrast with judicial; it characterizes an attitude of extra-judicial origin, derived non coram judice. * * * The statute never contemplated crippling our courts by disqualifying a judge, solely on the basis of a bias (or state of mind, * * *) against wrongdoers, civil or criminal, acquired from evidence presented in the course of judicial proceedings before him.” Craven v. United States, 22 F.2d 605, 607-608 (1st Cir. 1927), cert. denied, 276 U.S. 627, 48 S.Ct. 321, 72 L.Ed. 739 (1927). The Supreme Court has stated that: “The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.” United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966). On the other hand, to establish the extrajudicial source of bias and prejudice would often be difficult or impossible and this is not required. Comments and rulings by a judge during the trial of a. case may well be relevant to the question of the existence of prejudice. Conceivably also, and we shall" }, { "docid": "2776094", "title": "", "text": "in testing an affidavit filed under § 144 are concisely stated by the Court in United States v. Townsend, supra, 478 F.2d at 1073-74: “The mere filing of an affidavit under this section does not automatically disqualify a judge. Behr v. Mine Safety Appliances Co., 233 F.2d 371 (C.A.3), cert. denied, 352 U.S. 942, 77 S.Ct. 264, 1 L.Ed.2d 237 (1956). Disqualification results only from the filing of a timely and sufficient affidavit. Brotherhood of Locomotive Firemen and Enginemen v. Bangor and Aroostook R. Co., 127 U.S.App.D.C. 23, 380 F.2d 570, cert. denied per curiam, 389 U.S. 327, 88 S.Ct. 437, 19 L.Ed.2d 560 (1967). It is the duty of the judge against whom a section 144 affidavit is filed to pass upon the legal sufficiency of the facts alleged. Simmons v. United States, 302 F.2d 71 (C.A.3, 1962). Neither the truth of the allegations nor the good faith of the pleader may be questioned. Simmons, supra. “[T]he section withdraws from the presiding judge a decision upon the truth of the matters alleged.” Berger v. United States, 255 U.S. 22, 36, 41 S.Ct. 230, 234, 65 L.Ed. 481 (1921); see Parker Precision Products Co. v. Metropolitan Life Ins. Co., 407 F.2d 1070 (C.A.3, 1969). To warrant disqualification the affidavit “must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.” Berger, supra, 255 U.S. at 33-34, 41 S.Ct. at 233. Clearly, more than mere conclusions are required. Inland Freight Lines v. United States, 202 F.2d 169 (C.A.10, 1953). Facts including time, place, persons, and circumstances must be set forth. Hodgson v. Liquor Salesmen’s Local No. 2 of the State of New York, 444 F.2d 1344 (C.A.2, 1971).” (Footnote omitted). Under the statutory authority, only the allegation of “a personal bias or prejudice” will suffice. “The alleged bias and prejudice to be disqualifying must stem from an extra-judicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.” United States v. Grinnell Corp., 384 U.S. 563, 583, 86" }, { "docid": "6199550", "title": "", "text": "observe that the basis for disqualification is personal bias or prejudice which precludes the judge from impartially exercising his judicial responsibilities in a particular case. It is to be noted that a distinction is to be drawn “between a judicial determination derived from evidence and lengthy proceedings had before the court, and a determination not so founded upon facts brought forth in court, but based on attitudes and conceptions that have their origins in sources beyond the four corners of the courtroom.” In Re Federal Facilities Realty Trust Co., 140 F.Supp. 522 (N.D.Ill.1956) (emphasis added). Reviewing the appellants’ affidavits, we note again that they allege as factual basis for charges of prejudice only acts and conduct occurring in the courtroom during the trial of the present case or in relation to the court’s official action in ruling upon issues and questions of conduct which were a part of the court proceedings in this case. However: “It is the duty of a real judge to acquire views from evidence. The statute never contemplated crippling our courts by disqualifying a judge, solely on the basis of a bias (or state of mind, 255 U.S. 42, 41 S.Ct. 230, 65 L.Ed. 481 [Berger v. United States]) against wrongdoers, civil or criminal, acquired from evidence presented in the course of judicial proceedings before him. Any other construction would make the statute an intolerable obstruction to the efficient conduct of judicial proceedings, now none too speedy or effective.” Craven v. United States, 22 F.2d 605, 608 (1st Cir. 1927). More succinctly stated, in order to be disqualifying the Supreme Court has construed the statute to establish that: “The alleged bias and prejudice to be disqualifying must stem from an extra-judicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.” (Emphasis supplied.) United States v. Grinnel Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966). It is perfectly obvious that of the asserted bias of Judge Sirica, none originated in any extrajudicial source, consequently we affirm the" }, { "docid": "23381819", "title": "", "text": "need to admit documents which might confuse the jury. Id. at a226-27. There was no abuse of discretion in this ruling. VI. After all the evidence was presented in this case, Franco informed the government that Vespe accosted him immediately after he testified in the hallway outside the courtroom. The government reported this allegation to the court. It held a hearing on the matter. Vespe argues that in doing so the district court improperly became a prosecutor and that it erred in denying his motions for recusal under 28 U.S.C.A. §§ 144 and 455 (West 1968 & Supp.1988). When a timely affidavit is filed under section 144, its factual allegations must be accepted as true. E.g., Mims v. Shapp, 541 F.2d 415, 417 (3d Cir.1976). Conclusory statements and opinions, however, need not be credited. See, e.g., United States v. Haldeman, 559 F.2d 31, 134 (D.C.Cir.1976) (en banc) (per curiam), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977). The court passes solely on the legal sufficiency of the facts, and must recuse itself if they “ ‘give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.’” United States v. Townsend, 478 F.2d 1072, 1073-74 (3d Cir.1973) (quoting Berger v. United States, 255 U.S. 22, 33-34, 41 S.Ct. 230, 233, 65 L.Ed. 481 (1921)). Only bias which is personal or extrajudicial in nature is disqualifying. Johnson v. Trueblood, 629 F.2d 287, 290-91 (3d Cir.1980); Mims, 541 F.2d at 417. Vespe’s affidavit states that the district court ordered the government’s attorney to produce two witnesses to testify before the court on the alleged incident and invited the United States Attorney to conduct, or assist in conducting, an investigation. App. at a982. When this invitation was declined, the affidavit continues, the court “personally conducted what it termed an ‘investigation’ into possible wrongdoing by me, including intimidation of witnesses” and on or about the same date informed the parties that it would refer its “investigation” to the United States Attorney’s Office. Id. Vespe further averred that one witness was issued Miranda warnings" }, { "docid": "2776095", "title": "", "text": "United States, 255 U.S. 22, 36, 41 S.Ct. 230, 234, 65 L.Ed. 481 (1921); see Parker Precision Products Co. v. Metropolitan Life Ins. Co., 407 F.2d 1070 (C.A.3, 1969). To warrant disqualification the affidavit “must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.” Berger, supra, 255 U.S. at 33-34, 41 S.Ct. at 233. Clearly, more than mere conclusions are required. Inland Freight Lines v. United States, 202 F.2d 169 (C.A.10, 1953). Facts including time, place, persons, and circumstances must be set forth. Hodgson v. Liquor Salesmen’s Local No. 2 of the State of New York, 444 F.2d 1344 (C.A.2, 1971).” (Footnote omitted). Under the statutory authority, only the allegation of “a personal bias or prejudice” will suffice. “The alleged bias and prejudice to be disqualifying must stem from an extra-judicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.” United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966). “A distinction must be drawn between a judicial determination derived from evidence and lengthy proceedings had before the court, and a determination not so founded upon facts brought forth in court, but based on attitudes and conceptions that have their origins in sources beyond the four corners of the courtroom.” In re: Federal Facilities Realty Trust, 140 F.Supp. 522, 526 (N.D.Ill.1956). “The distinction is important, for an allegation of ‘personal’ bias is a proper basis for disqualification; an allegation of ‘judicial’ bias is not.” United States v. Thompson, 483 F.2d 527, 529 (3rd Cir. 1973). See also, United States v. Mitchell, 377 F.Supp. 1312 (D.D.C.1974). Both of the affidavits before me fail to meet this essential statutory requirement. The averments by each party point only to the Court’s comments during proceedings in the case. Nothing is specifically alleged to show that the statements are founded on an attitude of extra-judicial origin. It is apparent, however, that the chief concern of both parties is not my remarks themselves, but" }, { "docid": "3172052", "title": "", "text": "Appliances Co., 233 F.2d 371, 372 (3d Cir.), cert. denied, 352 U.S. 942, 77 S.Ct. 264, 1 L.Ed.2d 237 (1956). Only the filing of a timely and sufficient affidavit will result in such a disqualification. United States v. Townsend, supra, 478 F.2d at 1073; Brotherhood of Locomotive Firemen and Engineers v. Bangor and Aroostock R. Co., 127 U.S.App.D.C. 23, 380 F.2d 570, cert. denied, 389 U.S. 327, 88 S.Ct. 437, 19 L.Ed.2d 560 (1967). It is my duty, as the judge against whom a § 144 affidavit has been filed, to pass upon the legal sufficiency of the facts alleged in the affidavit. United States v. Townsend, supra, 478 F.2d at 1073; Simmons v. United States, 302 F.2d 71, 75 (3d Cir. 1962). I may not, however, question either the truth of the allegations or the good faith of the pleader. United States v. Town send, supra, 478 F.2d at 1073; Simmons v. United States, supra, 302 F.2d at 75; In re Federal Facilities Realty Trust, 140 F.Supp. 522, 524 (N.D.Ill.1956). “[T]he section withdraws from the presiding judge a decision upon the truth of the matters alleged.” Berger v. United States, 255 U.S. 22, 36, 41 S.Ct. 230, 234, 65 L.Ed. 481 (1921); United States v. Townsend, supra, 478 F.2d at 1073; see Parker Precision Products Co. v. Metropolitan Life Insurance Co., 407 F. 2d 1070, 1077 (3d Cir. 1969). My disqualification will not be warranted unless a § 144 affidavit “give[s] fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.” Berger v. United States, supra, 255 U.S. at 33-34, 41 S.Ct. at 233; United States v. Townsend, supra, 478 F.2d at 1073-1074. Mere conclusions will not suffice to support such a disqualification. United States v. Townsend, supra, at 1074; Inland Freight Lines v. United States, supra, 202 F.2d at 171. “Facts must be pleaded which show that there exists personal bias and prejudice on the part of the trial judge.” Inland Freight Lines v. United States, supra, at 171; see Simmons v. United States, supra, 302 F.2d at 75. Disqualification" } ]

[ { "docid": "22033084", "title": "", "text": "unquestioned precedent, or some other authoritative source of law that they can be rejected summarily. And since we’re discussing word usage, we take the opportunity to question another bit of legal jargon. In innumerable cases in which a criminal defendant’s lawyer files an Anders brief our court states, usually as a prelude to granting the lawyer’s motion to withdraw and dismissing the appeal, that as long as the lawyer’s brief is “facially adequate” we’ll confine analysis to the issues discussed in the brief and in the defendant’s response (if any) to it. See, e.g., United States v. Vallar, 635 F.3d 271, 289 (7th Cir.2011); United States v. Maeder, 326 F.3d 892, 893 (7th Cir.2003) (per curiam). By “facially adequate” we mean that the brief appears to be a competent effort to determine whether the defendant has any grounds for appealing. That appearance reassures us that the issues discussed in the brief are the only serious candidates for appellate review and so the only ones we need consider. We should say this rather than recite a formula — “facially adequate” — unlikely to be intelligible to the prisoner to whom the An-ders order is addressed; with his lawyer having been allowed to withdraw, the prisoner may have difficulty understanding the what and why of the order. We should say for example: “Counsel has submitted a brief that explains the nature of the case and addresses the issues that a case of this kind might be expected to involve. Because the analysis in the brief appears to be thorough, we limit our review to the subjects that counsel has discussed, plus any additional issues that the defendant, disagreeing with counsel, believes have merit.” See United States v. Wagner, 103 F.3d 551, 553 (7th Cir.1996). Turning at last to the merits, we begin with the strongest-seeming objection the defendant could make to his sentence for robbery (the sentence that determined the overall length of his prison term) — that he wasn’t one of the robbers. He neither entered the bank nor even participated in the getaway; he may have sped away from the" } ]

[ { "docid": "82595", "title": "", "text": "challenges the appropriateness of revocation nor asserts substantial and complex grounds in mitigation. See Gagnon v. Scarpelli, 411 U.S. 778, 790-91, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); United States v. Boultinghouse, 784 F.3d 1163, 1171-72 (7th Cir.2015); United States v. Eskridge, 445 F.3d 930, 932-33 (7th Cir.2006). Thus the Anders safeguards do not govern our review of counsel’s motion to withdraw. See Pennsylvania v. Finley, 481 U.S. 551, 554-55, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987); Eskridge, 445 F.3d at 933. We may affirm “if we determine that the appeal, though not frivolous, is also not meritorious.” Eskridge, 445 F.3d at 933. We invited Wheeler to comment on counsel’s motion, but he has not responded. See Cir. R. 51(b). Counsel has submitted a brief that explains the nature of the ease and addresses the potential issues that an appeal of this kind might be expected to involve. The analysis in the brief appears to be thorough, so we focus our review on the subjects that counsel discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir.2014); United States v. Wagner, 103 F.3d 551, 553 (7th Cir.1996). Counsel first notes that Wheeler does not want to challenge the revocation of his supervision, and thus the lawyer properly refrains from discussing whether Wheeler’s admissions to the charged violations were knowing and voluntary. See United States v. Wheaton, 610 F.3d 389, 390 (7th Cir.2010); United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002). Counsel next discusses ■ whether Wheeler could raise an appellate claim about the calculation of his reimpris-onment range. Wheeler did not object to the district court’s application of the Sentencing Guideline Chapter 7 policy statements, so our review would be limited to plain error. See United States v. Pitre, 504 F.3d 657, 661, 664 (7th Cir.2007); United States v. Harvey, 232 F.3d 585, 587 (7th Cir.2000). At Wheeler’s revocation hearing the district court said that his reimprisonment range would be 21 to 27 months. (Wheeler’s criminal history category is VI, and the court found that his possession of marijuana constituted a Grade B violation because he" }, { "docid": "22881774", "title": "", "text": "and therefore inconsistent with the requirement that the Supreme Court has read into the Sixth Amendment that a criminal defendant’s counsel be effective. But that is of no moment as far as Anders is concerned, since Eskridge has no Sixth Amendment right to counsel (nor, unlike Douglas and Anders, a right founded on the equal protection clause). Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), so held in the analogous case of postconviction counsel; see also United States v. Kimberlin, 898 F.2d 1262, 1265 (7th Cir.1990). So we are not precluded from addressing the merits of Eskridge’s appeal and affirming the district court’s judgment if we determine that the appeal, though not frivolous, is also not meritorious. Even more clearly, we are free to reverse. So let us turn to the merits. When Eskridge was first convicted, the supervised-release statute provided that a defendant whose release was revoked could not be reimprisoned for more than two years if the offense of conviction was merely a Class C or Class D felony; Eskridge had been convicted of one of each. 18 U.S.C. § 3583(e)(3) (1988 & Supp. IV). This ceiling applied, moreover, to the aggregate of reimprisonments based on multiple revocations. United States v. Beals, 87 F.3d 854, 857-58 (7th Cir.1996), overruled on other grounds by United States v. Withers, 128 F.3d 1167 (7th Cir.1997); United States v. Merced, 263 F.3d 34, 37 (2d Cir.2001) (per curiam); United States v. Brings Plenty, 188 F.3d 1051, 1053 (8th Cir.1999) (per curiam). Before his latest revocation, Eskridge had served 14 months in prison for his previous revocations, and so, since two years equals 24 months, he could not be sentenced to more than 10 months for the third revocation. Or so it might seem. But there is a wrinkle. To straighten it out will require a brief excursus into an esoteric corner of federal criminal procedure. Congress in 1994 ordained that upon revoking a term of supervised release, the district court could impose a prison term followed by more supervised release. 18 U.S.C. § 3583(h). Eskridge was originally" }, { "docid": "82594", "title": "", "text": "PER CURIAM. Appellant Jonus Wheeler pled guilty in 2006 to possessing a firearm as a felon, see 18 U.S.C. § 922(g)(1), and was sentenced to 108 months in prison followed by 36 months of supervised release. Ten months after he was released from prison and began serving the term of supervision, the government sought revocation, see 18 U.S.C. § 3583(e) and (g), alleging that Wheeler had tested positive for (and thus possessed) marijuana four times, missed nine drug-treatment sessions, and twice failed to submit a monthly supervision report. After Wheeler admitted the allegations, the district court revoked his supervised release and imposed 21 months of reimprisonment to be followed by another 12 months of supervised release. Wheeler filed a notice of appeal, but his appointed attorney asserts that the appeal is frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). There is no constitutional right to counsel in a revocation proceeding where, as here, the defendant admits violating the conditions of his supervision and neither challenges the appropriateness of revocation nor asserts substantial and complex grounds in mitigation. See Gagnon v. Scarpelli, 411 U.S. 778, 790-91, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); United States v. Boultinghouse, 784 F.3d 1163, 1171-72 (7th Cir.2015); United States v. Eskridge, 445 F.3d 930, 932-33 (7th Cir.2006). Thus the Anders safeguards do not govern our review of counsel’s motion to withdraw. See Pennsylvania v. Finley, 481 U.S. 551, 554-55, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987); Eskridge, 445 F.3d at 933. We may affirm “if we determine that the appeal, though not frivolous, is also not meritorious.” Eskridge, 445 F.3d at 933. We invited Wheeler to comment on counsel’s motion, but he has not responded. See Cir. R. 51(b). Counsel has submitted a brief that explains the nature of the ease and addresses the potential issues that an appeal of this kind might be expected to involve. The analysis in the brief appears to be thorough, so we focus our review on the subjects that counsel discusses. See United States v. Bey, 748 F.3d" }, { "docid": "12505447", "title": "", "text": "PER CURIAM. While on probation for a state drug conviction, Mashica Spann met Carlos Hoffman in court-mandated group therapy and joined his heroin-distribution ring. She was indicted in federal court for her role in the operation and pleaded guilty to conspiracy to distribute heroin, see 21 U.S.C. §§ 846, 841(a)(1), a crime that presumptively mandated a minimum prison term of five years because the conspiracy involved 100 or more grams, id. § 841(b)(1)(B). After rejecting Spann’s argument that she was a minimal or minor participant in the crime, see U.S.S.G. § 3B1.2, the district court calculated her guidelines imprisonment range as 57 to 71 months without the mandatory minimum, which made the applicable range 60 to 71 months, see U.S.S.G. § 5Gl.l(c)(2); United States v. Gonzalez, 534 F.3d 613, 615 (7th Cir.2008). But the government moved for a sentence below the mandatory minimum, citing Spann’s substantial assistance in the investigation of Hoffman and others. See 18 U.S.C. § 3553(e). The court granted the motion and sentenced Spann to 24 months, less than half of the mandatory minimum and more than a year below the government’s most favorable recommendation. Spann filed a notice of appeal, but her appointed counsel has concluded that the appeal is frivolous and seeks permission to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Spann has not accepted our invitation to comment on counsel’s facially adequate submission. See Cir. R. 51(b). We limit our review to the potential issues that counsel discusses. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Spann does not want her guilty plea set aside, so counsel properly forgoes discussing the adequacy of the plea colloquy or the voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002). Counsel first considers arguing that the district court undervalued Spann’s cooperation and did not shave enough time from the statutory minimum. But valuing substantial assistance given as part of a cooperation agreement under 18 U.S.C. § 3553(e) is a matter within the sentencing court’s discretion, and thus counsel rightly concludes" }, { "docid": "82596", "title": "", "text": "774, 776 (7th Cir.2014); United States v. Wagner, 103 F.3d 551, 553 (7th Cir.1996). Counsel first notes that Wheeler does not want to challenge the revocation of his supervision, and thus the lawyer properly refrains from discussing whether Wheeler’s admissions to the charged violations were knowing and voluntary. See United States v. Wheaton, 610 F.3d 389, 390 (7th Cir.2010); United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002). Counsel next discusses ■ whether Wheeler could raise an appellate claim about the calculation of his reimpris-onment range. Wheeler did not object to the district court’s application of the Sentencing Guideline Chapter 7 policy statements, so our review would be limited to plain error. See United States v. Pitre, 504 F.3d 657, 661, 664 (7th Cir.2007); United States v. Harvey, 232 F.3d 585, 587 (7th Cir.2000). At Wheeler’s revocation hearing the district court said that his reimprisonment range would be 21 to 27 months. (Wheeler’s criminal history category is VI, and the court found that his possession of marijuana constituted a Grade B violation because he already had a conviction for a drug offense, see 21 U.S.C. § 844(a); United States v. Trotter, 270 F.3d 1150, 1154 (7th Cir.2001).) But the district court did not say specifically that the reimpris-onment range was subject to a statutory maximum of 24 months given that the underlying § 922(g)(1) offense was a class C felony. See 18 U.S.C. §§ 924(a)(2), 3559(a)(3), 3583(e)(3); U.S.S.G. §§ 7B1.1, 7B1.4(a), (b)(3)(A). Counsel thus questions whether Wheeler could argue that the district court was misinformed about the true range when deciding on the appropriate term of reimprisonment. But as appellate counsel points out, the prosecutor noted that 24 months was the statutory maximum in recommending a term of that length. The probation officer also had alerted the district court in writing that 24 months was the maximum. The court said nothing suggesting a misunderstanding about the statutory maximum, and the court even referred to 18 U.S.C. § 3583, which defined that maximum, . when announcing the 21-month term. Thus, on this record Wheeler could not make a meritorious claim" }, { "docid": "19002602", "title": "", "text": "felony convictions for kidnaping, rape and possession of cocaine, the district court calculated a guidelines range of 235 to 293 months. The court, however, sentenced Mr. McGee below that range to 200 months’ imprisonment, five years of supervised release and a $100 special assessment. Mr. McGee filed a notice of appeal, but the appointed lawyer representing him at that time concluded that the appeal was frivolous and moved to withdraw under Anders. We granted counsel’s motion and dismissed the appeal. United States v. McGee, 216 Fed.Appx. 580 (7th Cir.2007). Meanwhile, Mr. McGee helped the Government apprehend his supplier, and thus the Government filed a motion, pursuant to Rule 35(b), asking the district court to reduce his sentence as a reward for his substantial assistance. The court granted that motion and gave Mr. McGee a chance to speak on his own behalf before imposing a new sentence. The court then reduced Mr. McGee’s original sentence by 40 months and imposed a 160-month term of imprisonment. The court entered a new judgment reflecting the reduced term. II DISCUSSION Mr. McGee filed a notice of appeal from the new judgment. Once again, his appointed lawyer seeks to withdraw under Anders because he cannot find a nonfrivo-lous basis for appeal. We invited Mr. McGee to respond to counsel’s motion, see Cir. R. 51(b), but he has not done so. Counsel’s brief is facially adequate, so we confine our review to the potential issue identified by counsel. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Counsel ultimately concludes that Mr. McGee’s appeal is frivolous because, in United States v. McDowell, 117 F.3d 974, 978 (7th Cir.1997), we held that this court lacks jurisdiction to review a revised term of imprisonment entered in response to a motion from the Government under Rule 35(b). See also United States v. Moran, 325 F.3d 790, 792 (6th Cir.2003); United States v. McMillan, 106 F.3d 322, 324 n. 4 (10th Cir.1997); United States v. Doe, 93 F.3d 67, 68 (2d Cir.1996); United States v. Pridgen, 64 F.3d 147, 149-50 (4th Cir.1995); United States v. Arishi, 54 F.3d" }, { "docid": "22720526", "title": "", "text": "and Lane to respond to their attorney’s respective motion, see Cir. R. 51(b), but only Lane replied. Thus, we confine our review of the record to the potential issues raised in each attorney’s facially-adequate brief and Lane’s Rule 51(b) response. ' United States v. Tabb, 125 F.3d 583, 584 (7th Cir.1997) (per cu-riam). 1. Nolen Nolen’s counsel first considers whether Nolen may argue that her guilty plea was not knowing and voluntary, but concludes that such an argument would be frivolous because the district court complied with Federal Rule of Criminal Procedure 11. Nolen did not move to withdraw her guilty plea, so we would review her Rule 11 plea colloquy only for plain error. See United States v. Vonn, — U.S. -, -, 122 S.Ct. 1043, 1046, 152 L.Ed.2d 90 (2002). Although we note one Rule 11 omission — the court failed to inform her of the effect of supervised release — it would not constitute plain error because Nolen’s 70-month prison term, when combined with her 3-year term of supervised release, is still within the statutory maximum of 20 years’ imprisonment for her offense, 21 U.S.C. § 856(b), and Nolen knew of that maximum when she entered her plea. See United States v. Elkins, 176 F.3d 1016, 1021-22 (7th Cir.1999). In all other respects, the district court complied with Rule 11. First, after warning Nolen that she was under oath and that any false statement could be used against her in a prosecution for perjury, the district court questioned her regarding the nature of the charge, the maximum possible penalties, the rights she would waive by pleading guilty, and the applicability of the sentencing guidelines, including the court’s authority to depart from those guidelines. Further, Nolen testified that she was not forced to plead guilty and that the government’s factual basis for the plea was accurate. Therefore, we agree with counsel that an argument based on the validity of Nolen’s plea would be frivolous. Counsel next considers whether Nolen could challenge the district court’s assignment of two criminal history points under U.S.S.G. § 4Al.l(c) for her two convictions" }, { "docid": "22351804", "title": "", "text": "WOOD, Circuit Judge. Campus police officers at Lakeland Community College in Mattoon, Illinois, observed Chad Konczak using publicly available computer terminals to download sexually explicit photos of young girls. Konczak was arrested and pleaded guilty to accessing an Internet website for the purpose of viewing child pornography on that site, 18 U.S.C. § 2252A(a)(5)(b). The district court calculated an advisory guidelines imprisonment range of 41 to 51 months and sentenced Konczak to 45 months. Konczak has now filed a notice of appeal, but his appointed lawyer seeks to withdraw on the ground that all possible arguments are frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Konczak opposes counsel’s motion. See Cir. R. 51(b). We confine our review to the potential issues identified in counsel’s facially adequate brief and Konczak’s response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Counsel first considers whether Konczak could challenge the adequacy of the plea colloquy or the voluntariness of his guilty plea. It is unclear, however, whether counsel has discussed a challenge to the plea with Konczak. In United States v. Knox, 287 F.3d 667 (7th Cir. 2002), we held that counsel “should not present (or even explore in an Anders submission) a Rule 11 argument unless they know after consulting their clients, and providing advice about the risks, that the defendant really wants to withdraw the guilty plea.” Id. at 671 (emphasis added). Some of our nonprecedential orders might be read to indicate that the burden rests on the client to alert counsel about his desire to withdraw the plea, but that is not what Knox said (and those orders are expressly nonprecedential in any event). See, e.g., United States v. Potts, 456 Fed.Appx. 602 (7th Cir.2012); United States v. Arguijo-Cervantes, 461 Fed.Appx. 513, 2012 WL 475928 (7th Cir. Feb. 15, 2012); United States v. Nunez-Garcia, 455 Fed. Appx. 698 (7th Cir.2012). Knox instructs counsel both to consult with the client and to provide advice about the risks and benefits of any proposed course of action. Only if, after counsel has taken that" }, { "docid": "16307266", "title": "", "text": "There is no constitutional right to counsel in a revocation proceeding when, as here, the defendant admits violating the conditions of his supervision and neither challenges the appropriateness of revocation nor asserts substantial and complex grounds in mitigation. See Gagnon v. Scarpelli, 41Í U.S. 778, 790-91, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); United States v. Boultinghouse, 784 F.3d 1163, 1171 (7th Cir.2015); United States v. Eskridge, 445 F.3d 930, 932-33 (7th Cir.2006). The An-ders safeguards thus do not govern our review of counsel’s motion to withdraw, see Pennsylvania v. Finley, 481 U.S. 551, 554-55, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987); United States v. Wheeler, 814 F.3d 856, 857 (7th Cir.2016), though we follow them to ensure consideration of potential issues. We invited Brown to comment on counsel’s motion, but he has not responded. See Cir. R. 51(b). Counsel has submitted a brief that' explains the nature of the case and addresses the potential issues that an appeal of this kind might be expected to involve. The analysis in the brief appears to be thorough, so we focus our review on the subjects that counsel discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir.2014); United States v. Wagner, 103 F.3d 551, 553 (7th Cir.1996). Counsel first questions whether Brown could challenge the calculation of his reimprisonment range. Brown did not object to the district court’s application of the policy statements in Chapter 7 of the U.S. Sentencing Guidelines, so our review would be limited to plain error. See Wheeler, 814 F.3d at 857; United States v. Pitre, 504 F.3d 657, 661, 664 (7th Cir.2007). The new offense that Brown admitted committing — failing to register a change of address as a sex offender — was punishable by a term of imprisonment greater than one year, see 730 ILCS 150/3(a), 10(a); id. 5/5-4.5-40(a), and thus was a Grade B violation of his federal supervised release. See U.S.S.G. § 7Bl.l(a)(2). The court correctly determined that the recommended range of reimprisonment — based on the Category III criminal history at the time of Brown’s original sentencing and his Grade" }, { "docid": "9280999", "title": "", "text": "Guidelines (\"Guidelines\") range would have been 70-87 months, and his statutory sentencing range would have been 5 to 40 years. The district court noted, \"[T]he sentence that is required to be imposed upon you is a harsh sentence. It's a mandatory minimum sentence. I don't have any discretion in that area.\" J.A. 85-86. We affirmed Appellant's conviction and sentence. See United States v. Wheeler , 329 Fed.Appx. 481 (4th Cir. 2009) (per curiam). B. First § 2255 Motion On June 29, 2010, Appellant filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. He alleged that his counsel was ineffective for, inter alia, failing to argue that the 1996 Conviction did not qualify to enhance his sentence. See J.A. 116-17 (\"[C]ounsel in this matter[ ] allowed an error to proceed uncorrected.... The term of [the 1996 Conviction] didn't exceed one year[;] the maximum punishment that he could receive was[ ] eight months....\"). The district court dismissed the § 2255 motion on March 17, 2011, and denied a certificate of appealability (\"COA\"), explaining that Appellant's argument was foreclosed by this court's decision in United States v. Harp , 406 F.3d 242 (4th Cir. 2005), and this court's panel decision in United States v. Simmons , 635 F.3d 140 (4th Cir. 2011). See J.A. 204. Those decisions held, \"[T]o determine whether a conviction is for a crime punishable by a prison term exceeding one year [under North Carolina law], ... we consider the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history.\" Harp , 406 F.3d at 246 (second emphasis supplied); see also Simmons , 635 F.3d at 146. Thus, the district court reasoned that although Appellant received a sentence of six to eight months for the 1996 Conviction, \"his offense was punishable by imprisonment for more than a year\" because it was a Class I felony, which carries a maximum sentence of 15 months. J.A. 204. Thus, \"[a]ny challenge [to the 1996 Conviction] made by Petitioner's counsel would have failed.\" Id . Appellant filed" }, { "docid": "16307269", "title": "", "text": "term of supervised release is unlawful or plainly unreasonable. The statute for the underlying conviction authorized a lifetime term of supervision, so the 10-year term of supervised release the judge imposed on revocation was within the permissible range. See 18 U.S.C. § 3583(k); U.S.S.G. § 7B1.3(g)(2). And, in light of the district court’s discussion of Brown’s history and characteristics, we would not find the new term of supervised release plainly unreasonable. Counsel does not mention two standard conditions of supervised release that the district court imposed and that we have criticized as vague. First, we have said that language requiring Brown to notify his probation officer of any change in employment leaves unclear whether this condition applies only to “ ‘changing employers or also includes changing from one position to another for the same employer at the same workplace.’” See United States v. Hill, No. 15-3090, 818 F.3d 342, 345 (7th Cir. Apr. 7, 2016), quoting United States v. Thompson, 777 F.3d 368, 379 (7th Cir.2015). Second, the condition prohibiting Brown from leaving the judicial district without permission lacks a scienter requirement and so could improperly impose strict liability. See Wheeler, 814 F.3d at 858; United States v. Kappes, 782 F.3d 828, 849-50 (7th Cir.2015). That being said, we have no reason • to believe that Brown wishes to challenge these conditions, as counsel has not identified them as potential issues and Brown has not responded to our invitation to comment on counsel’s brief. See United States v. Bryant, 754 F.3d 443, 447 (7th Cir.2014). Moreover, if Brown perceives these conditions to be vague, confusing, or burdensome after he begins serving the term of supervised release, he would be free to seek modification under 18 U.S.C. § 3583(e)(2). See United States v. Neal, 810 F.3d 512, 518-20 (7th Cir.2016). Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED." }, { "docid": "22660610", "title": "", "text": "supplemental briefing. Third Circuit L.A.R. 109.2(a). The Court’s inquiry when counsel submits an Anders brief is thus twofold: (1) whether counsel adequately fulfilled the rule’s requirements; and (2) whether an independent review of the record presents any nonfrivolous issues. Marvin, 211 F.3d at 780 (citing United States v. Tabb, 125 F.3d 583 (7th Cir.1997); and United States v. Wagner, 103 F.3d 551 (7th Cir.1996)). This Court, following the Seventh Circuit’s analysis in Tabb, established the first inquiry as dispositive: “except in those cases in which frivolousness is patent, we will reject briefs ... in which counsel argue the purportedly frivolous issues aggressively without explaining the faults in the arguments, as well as those where we are not satisfied that counsel adequately attempted to uncover the best arguments for his or her client.” Marvin, 211 F.3d at 781. In this case, we reject the Anders brief for the latter reason. A. Adequacy of Counsel’s Anders Brief The duties of counsel when preparing an Anders brief are (1) to satisfy the court that counsel has thoroughly examined the record in search of appealable issues, and (2) to explain why the issues are frivolous. Marvin, 211 F.3d at 780 (citing Tabb, 125 F.3d at 585, 586). Counsel need not raise and reject every possible claim. However, at a minimum, he or she must meet the “conscientious examination” standard set forth in Anders. Id. In his Anders brief before this Court, counsel’s analysis of the merits of the potential appealable issues constituted two pages. With regard to sentencing, counsel’s examination cites no case law, and is limited to the following: The sentence imposed upon the appellant also appears to have been without legal error. Based upon the calculation that the applicable base offense level was 18, with a criminal history category I, the imposition of a sentence of imprisonment of 33 months fell within the applicable guideline range. Thus, there is simply no basis for concluding that the District Court’s sentencing decision constituted an abuse of discretion. Appellant’s Br. Pursuant to Anders v. California at 4. Counsel fails to mention that the Presentence Investigation" }, { "docid": "12505448", "title": "", "text": "mandatory minimum and more than a year below the government’s most favorable recommendation. Spann filed a notice of appeal, but her appointed counsel has concluded that the appeal is frivolous and seeks permission to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Spann has not accepted our invitation to comment on counsel’s facially adequate submission. See Cir. R. 51(b). We limit our review to the potential issues that counsel discusses. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Spann does not want her guilty plea set aside, so counsel properly forgoes discussing the adequacy of the plea colloquy or the voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002). Counsel first considers arguing that the district court undervalued Spann’s cooperation and did not shave enough time from the statutory minimum. But valuing substantial assistance given as part of a cooperation agreement under 18 U.S.C. § 3553(e) is a matter within the sentencing court’s discretion, and thus counsel rightly concludes that an appellate claim challenging the reduction as too little would be frivolous because we lack jurisdiction to review the contention. See 18 U.S.C. § 3742(a); United States v. Thomas, 11 F.3d 732, 735 (7th Cir.1993); United States v. Shaffer, 993 F.2d 625, 628-29 (7th Cir. 1993); United States v. Dean, 908 F.2d 215, 217-18 (7th Cir.1990). Although these cases predate United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we have explained in discussing sentence reductions under Federal Rule of Criminal Procedure 35(b) that Booker did not alter our limited jurisdiction under 18 U.S.C. § 3742(a), which is also the source of our jurisdiction here. See United States v. McGee, 508 F.3d 442, 444-45 (7th Cir.2007) (concluding that challenging extent of sentence reduction under Rule 35(b) would be frivolous); see also United States v. Chapman, 532 F.3d 625, 628 (7th Cir.2008); United States v. Parker, 543 F.3d 790, 792 (6th Cir.2008); United States v. Haskins, 479 F.3d 955, 957 (8th Cir.2007); United States v. McKnight, 448 F.3d 237, 238" }, { "docid": "16307265", "title": "", "text": "HAMILTON, Circuit Judge. In 2012 Cardell Brown pled guilty to failing to register as a sex offender, see 18 U.S.C. § 2250(a), and was sentenced to 18 months in prison followed by 60 months of supervised release. Within months of being released from prison, Brown was arrested by Illinois authorities for violating the state’s sex-offender registration law, 730 ILCS 150/3(a). He pled guilty and was sentenced to 18 months in state prison. Brown’s federal probation officer then petitioned the district court to revoke his supervised release, see 18 U.S.C. § 3583(e)(3), citing Brown’s state case and his failure to submit timely supervision reports on five occasions. Brown admitted the allegations. The district court revoked his supervised release, ordered him to serve an additional 12 months in prison (consecutive to his new state sentence) and imposed a 10-year term of supervised release. Brown filed a notice of appeal, but his appointed attorney asserts that the appeal is frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). There is no constitutional right to counsel in a revocation proceeding when, as here, the defendant admits violating the conditions of his supervision and neither challenges the appropriateness of revocation nor asserts substantial and complex grounds in mitigation. See Gagnon v. Scarpelli, 41Í U.S. 778, 790-91, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); United States v. Boultinghouse, 784 F.3d 1163, 1171 (7th Cir.2015); United States v. Eskridge, 445 F.3d 930, 932-33 (7th Cir.2006). The An-ders safeguards thus do not govern our review of counsel’s motion to withdraw, see Pennsylvania v. Finley, 481 U.S. 551, 554-55, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987); United States v. Wheeler, 814 F.3d 856, 857 (7th Cir.2016), though we follow them to ensure consideration of potential issues. We invited Brown to comment on counsel’s motion, but he has not responded. See Cir. R. 51(b). Counsel has submitted a brief that' explains the nature of the case and addresses the potential issues that an appeal of this kind might be expected to involve. The analysis in the brief appears to be" }, { "docid": "23630581", "title": "", "text": "See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Curry did not respond to counsel’s facially adequate brief. See Cir. R. 51(b). We limit our review to the potential issues counsel discusses. United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Counsel first considers whether Curry has any non-frivolous arguments to challenge his conviction. Since Curry does not seek to challenge his guilty plea on appeal, counsel properly declines to address any plea-related issues in his Anders brief. See United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002). Counsel does consider, however, whether Curry has any non-frivolous arguments challenging his sentence. He properly concludes that Curry has none. First, Curry’s within-guideline, 210-month sentence did not constitute a violation of law where it did not exceed the statutory maximum sentence of life, 21 U.S.C. § 841(b)(1)(A); United States v. Franz, 886 F.2d 973, 977 (7th Cir.1989), and where nothing in the record indicates that the district court violated Curry’s equal protection, due process, or other constitutional rights, see, e.g., United States v. Moore, 543 F.3d 891, 895-96 (7th Cir.2008) (discussing a “class of one” equal protection claim). See 18 U.S.C. 3742(a)(1) (permitting defendants to appeal a final sen tence that “was imposed in violation of law”)- Next, the district court committed no procedural errors when applying the sentencing guidelines to determine Curry’s sentence: It properly calculated the guidelines range, treated the guidelines as discretionary, considered the factors in § 3553(a), selected a sentence based on appropriate facts, and adequately explained the sentence it imposed. See Call, 552 U.S. at 51, 128 S.Ct. 586. Finally, Curry’s within-guide line sentence is not substantively unreasonable. See United States v. Rivera, 463 F.3d 598, 602 (7th Cir.2006) (“A sentence, such as this, that falls within a properly calculated Guidelines’ range is entitled to a rebuttable presumption of reasonableness.... [I]t will be a rare Guidelines sentence that is unreasonable.” (internal quotation marks and citations omitted)). We grant counsel’s request. III. Conclusion For the foregoing reasons, we Affirm the district court’s judgment and Grant Curry’s counsel’s request to withdraw and" }, { "docid": "22540514", "title": "", "text": "decision reconciled the conflicting interests of indigent appellants in zealous representation and the judicial system in the efficient administration of justice. Anders and its progeny discuss the adequacy of the brief which the appointed counsel must file in support of the motion to withdraw. Very little discussion exists, however, about the role of the courts in reviewing Anders briefs and requests for withdrawal of counsel. See, e.g., United States v. Wagner, 103 F.3d 551, 553 (7th Cir.1996) (noting dearth of case law and holding that “if the brief explains the nature of the ease and fully and intelligently discusses the issues that the type of case might be expected to involve, we shall not conduct an independent top-to-bottom review of the record in the district court to determine whether a more resourceful or ingenious lawyer might have found additional issues that may not be frivolous.”). This case presents a recurring issue: once appointed counsel has filed an Anders brief, should the indigent defendant be allowed to reject his attorney, have the Anders brief stricken, and proceed with his appeal pro se? Our circuit as well as others have routinely allowed indigent defendants to proceed pro se after an Anders brief has been filed and appointed counsel has been allowed to withdraw. See, e.g., United States v. Stuttley, 103 F.3d 684 (8th Cir.1996), cert. denied, — U.S. -, 118 S.Ct. 83, 139 L.Ed.2d 40 (1997); United States v. Henderson, 72 F.3d 463 (5th Cir.1995); United States v. Koff, 43 F.3d 417 (9th Cir.1994); United States v. Balzano, 916 F.2d 1273 (7th Cir.1990). Underlying this practice is the recognition that a criminal defendant has a constitutional and a statutory right to represent himself on appeal. See 28 U.S.C. § 1654; Myers v. Collins, 8 F.3d 249, 252 (5th Cir.1993). Although the right undoubtedly exists, we are compelled to examine closely when that right must be exercised on appeal and the appropriate standard to apply in order to further the principles of Anders. By analogy we look to the right of a defendant to proceed pro se during a criminal trial. We have" }, { "docid": "22812318", "title": "", "text": "offenses. The district court never addressed Simmons’ arguments regarding the craek/powder disparity. After pronouncing Simmons’ sentence, the court asked the parties whether they had “any objections to the sentence just pronounced that have not been previously raised?” J.A. 77. Defense counsel responded in the affirmative, stating: “Your Honor I object just for the record for the procedural, substantive aspects.” J.A. 77. II. The first question we face is what standard of review applies to Simmons’ claim that the district court failed to consider and failed to adequately explain its reasons for rejecting his craek/powder disparity argument. For its part, the majority concludes that Simmons has forfeited this claim and thus our decision in Vonner requires that plain-error review applies. I respectfully disagree. A. “Post-Booker, we review a district court’s sentencing determination, ‘under a deferential abuse-of-discretion standard,’ for reasonableness.” United States v. Bolds, 511 F.3d 568, 578 (6th Cir.2007) (quoting Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007)); see also Rita, 551 U.S. at 347-50, 127 S.Ct. 2456. This standard applies “[rjegardless of whether the sentence imposed is inside or outside the Guidelines range.” United States v. Studabaher, 578 F.3d 423, 430 (6th Cir.2009) (quoting Gall, 128 S.Ct. at 597). To determine whether a defendant’s sentence is “reasonable,” this Court must examine both the procedural and substantive aspects of the sentencing court’s decision. United States v. Jones, 445 F.3d 865, 869 (6th Cir.2006). Whereas a sentence is substantively unreasonable if the length of the sentence is “greater than necessary” to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a), the district court commits “significant procedural error” by “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 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, 128 S.Ct. at 597. Unlike claims relating to the substantive aspects of his or her sentence, a defendant generally must preserve procedural challenges for" }, { "docid": "22812317", "title": "", "text": "3553(a) that he believed supported such a downward variance. The memorandum raised issue regarding Simmons’ personal history, his character, and the nature of his offenses. Primarily, however, Simmons’ memorandum focused on the fundamental unfairness of the “100-to-l sentencing ratio” then applicable under the Guidelines to offenses involving crack cocaine as compared to offenses involving powder cocaine. The government did not file a response to Simmons’ memorandum. At the sentencing hearing, the government urged the court to impose a sentence at the low end of the advisory sentencing range. The court then heard argument from defense counsel and Simmons himself. As with his sentencing memorandum, the primary focus of Simmons’ argument in favor of a below-Guidelines sentence was that the crack/powder sentencing disparity was fundamentally unfair and resulted in an advisory sentencing range for crack offenses that was unnecessarily harsh. After hearing from both sides, the district court sentenced Simmons to 116 months imprisonment. In pronouncing Simmons’ sentence, the court briefly discussed Simmons’ personal history and characteristics, as well as the nature and circumstances of the offenses. The district court never addressed Simmons’ arguments regarding the craek/powder disparity. After pronouncing Simmons’ sentence, the court asked the parties whether they had “any objections to the sentence just pronounced that have not been previously raised?” J.A. 77. Defense counsel responded in the affirmative, stating: “Your Honor I object just for the record for the procedural, substantive aspects.” J.A. 77. II. The first question we face is what standard of review applies to Simmons’ claim that the district court failed to consider and failed to adequately explain its reasons for rejecting his craek/powder disparity argument. For its part, the majority concludes that Simmons has forfeited this claim and thus our decision in Vonner requires that plain-error review applies. I respectfully disagree. A. “Post-Booker, we review a district court’s sentencing determination, ‘under a deferential abuse-of-discretion standard,’ for reasonableness.” United States v. Bolds, 511 F.3d 568, 578 (6th Cir.2007) (quoting Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007)); see also Rita, 551 U.S. at 347-50, 127 S.Ct. 2456. This" }, { "docid": "16307267", "title": "", "text": "thorough, so we focus our review on the subjects that counsel discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir.2014); United States v. Wagner, 103 F.3d 551, 553 (7th Cir.1996). Counsel first questions whether Brown could challenge the calculation of his reimprisonment range. Brown did not object to the district court’s application of the policy statements in Chapter 7 of the U.S. Sentencing Guidelines, so our review would be limited to plain error. See Wheeler, 814 F.3d at 857; United States v. Pitre, 504 F.3d 657, 661, 664 (7th Cir.2007). The new offense that Brown admitted committing — failing to register a change of address as a sex offender — was punishable by a term of imprisonment greater than one year, see 730 ILCS 150/3(a), 10(a); id. 5/5-4.5-40(a), and thus was a Grade B violation of his federal supervised release. See U.S.S.G. § 7Bl.l(a)(2). The court correctly determined that the recommended range of reimprisonment — based on the Category III criminal history at the time of Brown’s original sentencing and his Grade B violation — was 8 to 14 months. See U.S.S.G. § 7B1.4(a). The district court’s order that Brown serve the term of federal reimprisonment after his new state sentence is also consistent with the relevant policy statement. See U.S.S.G. § 7B1.3(f). Counsel also considers but rightly rejects a challenge to the reasonableness of the term of reimprisonment. As required by 18 U.S.C. § 3583(e), the court took into account the pertinent sentencing factors in § 3553(a), including the nature and circumstances of the violation (opining that failing to register as a sex offender is a “very serious crime”), Brown’s history and characteristics (noting his multiple convictions for sex offenses involving children and his frequent parole violations), and the need to encourage Brown to comply with the court’s orders. We would not find the new term of reimprisonment to be •plainly unreasonable. See United States v. Jones, 774 F.3d 399, 404-05 (7th Cir.2014); United States v. Neal, 512 F.3d 427, 438 (7th Cir.2008). Finally, counsel considers but dismisses as frivolous a potential argument that the new" }, { "docid": "8625661", "title": "", "text": "PER CURIAM. Hubert Davenport decided to show off his gun to his friends at a bar one night. A bar employee observed him and called the police, and Mr. Davenport, a felon on probation, was arrested and charged with violating 18 U.S.C. § 922(g)(1). He pleaded guilty and was sentenced as an armed career criminal to 192 months’ imprisonment. See id. § 924(e). Mr. Davenport then filed a notice of appeal, but his appointed lawyer contends that the appeal is frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Mr. Davenport has not responded to counsel’s submission. See Cir. R. 51(b). We confine our review to the potential issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Counsel begins by addressing whether Mr. Davenport could challenge his conviction. Although she neglects to say whether she complied with this court’s requirement that she first ask him whether he wants his guilty plea set aside, see United States v. Konczak, 683 F.3d 348, 349 (7th Cir.2012); United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002), this omission does not mean that we must deny the Anders motion. If the transcript of the plea colloquy shows that a challenge to the voluntariness of the plea would be frivolous, the motion may be granted. See Konczak, 683 F.3d at 349-50; Schuh, 289 F.3d at 974. A challenge to the voluntariness of a guilty plea necessarily is frivolous if the district court substantially complied with Federal Rule of Criminal Procedure 11 when accepting the plea. Konczak, 683 F.3d at 349-50; Schuh, 289 F.3d at 974. And our review of Mr. Davenport’s plea colloquy would be even more deferential— confined to a search for plain error — because he did not move in the district court to withdraw his guilty plea. See United States v. Vonn, 535 U.S. 55, 62-63, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); United States v. Kilcrease, 665 F.3d 924, 927 (7th Cir.2012). An error is not plain unless it is obvious," } ]

[ { "docid": "22714428", "title": "", "text": "decency that we recognized in Gamble, supra, at 103-104. But conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society. B In view of the District Court’s findings of fact, its conclusion that double celling at SOCF constitutes cruel and unusual punishment is insupportable. Virtually every one of the court’s findings tends to refute respondents’ claim. The double celling made necessary by the unanticipated increase in prison population did not lead to deprivations of essential food, medical care, or sanitation. Nor did it increase violence among inmates or create other conditions intolerable for prison confinement. 434 F. Supp., at 1018. Although job and educational opportunities diminished marginally as a result of double celling, limited work hours and delay before receiving education do not inflict pain, much less unnecessary and wanton pain; deprivations of this kind simply are not punishments. We would have to wrench the Eighth Amendment from its language and history to hold that delay of these desirable aids to rehabilitation violates the Constitution. The five considerations on which the District Court relied also are insufficient to support its constitutional conclusion. The court relied on the long terms of imprisonment served by inmates at SOCF; the fact that SOCF housed 38% more inmates than its “design capacity”; the recommendation of several studies that each inmate have at least 50-55 square feet of living quarters; the suggestion that double-celled inmates spend most of their time in their cells with their cellmates; and the fact that double celling at SOCF was not a temporary condition. Supra, at 343-344. These general considerations fall far short in themselves of proving cruel and unusual punishment, for there is no evidence that double celling under these circumstances either inflicts unnecessary or wanton pain or is grossly disproportionate to the severity of crimes warranting imprisonment. At most, these con siderations amount to a theory that double celling inflicts pain. Perhaps they reflect an aspiration" } ]

[ { "docid": "22330058", "title": "", "text": "2399. The majority in Rhodes observed that the record there did not evidence conditions proving that unnecessary or wanton pain was inflicted on the Ohio inmates or that the punishment was disproportionate to the crimes committed. Furthermore, the Court placed less weight on the opinions of experts and standards promulgated by correctional agencies than upon the public attitude. In dictum, this emphasis was explained. The Rhodes majority observed that harsh or restrictive conditions of confinement are. part of the punishment criminal offenders justly receive; the Constitution does not mandate comfortable prisons. Justice Powell wrote that “[t]o the extent that such conditions [of confinement] are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.” Id. at 347, 101 S.Ct. at 2399. Of particular import here, the Rhodes majority observed that state legislatures and state prison officials can properly weigh considerations affecting the adequacy of prisons because they are sensitive to the dictates of the Constitution, the problem of just punishment, the deterrence of future crime, and the promotion of rehabilitation. On this predicate, the Court cautioned lower federal courts to avoid overzealous design in granting relief to prisoners. The Rhodes opinion, in my view, is a clear signal that the federal judiciary should, absent inaction by state courts, legislatures and executive officials where dire circumstances exist in a state penal system, practice a hands-off policy. There was nothing novel or challenging about the instant case. The State of Colo rado had already recognized the infirmities in its penal system and was aggressively moving to remedy them. The majority opinion indicates that because the State of Colorado resisted the claims of unconstitutionality, a great deal of time and expense expended would have been saved if it had admitted to these conditions. What conditions and what specific requirements of change? The converse is that the State had moved the district court in the early pleading stages to abstain or stay the overall proceedings inasmuch as the State was in fact moving expeditiously to renovate or construct new maximum security facilities. However, the trial" }, { "docid": "22405723", "title": "", "text": "precedents for the general principles that are relevant to a State’s authority to impose punishment for criminal conduct,” the Court noted that the amendment “prohibits punishments which, although not physically barbarous, ‘involve the unnecessary and wanton infliction of pain.’ ” Thus the eighth amendment prohibits inflictions of pain that are “ ‘totally without penological justification.’ ” “No static ‘test’ can exist by which courts determine whether conditions of confinement are cruel and unusual, for the Eighth Amendment ‘must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.’ ” These “ ‘judgments should not be, or appear to be, merely the subjective views of individual [judges].’ ” The judgments instead “ ‘should be informed by objective factors to the maximum possible extent.’ ” The same “principles apply when the conditions of confinement compose the punishment at issue.” “[C]onditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.” Applying these precepts, the Rhodes Court held that confining two inmates to one cell, called double-celling, at an Ohio maximum security prison was not cruel and unusual punishment. Double-celling was made necessary by an unanticipated increase in prison population. It did not lead to deprivations of essential food, medical care, or sanitation. It did not “increase violence among inmates or create other conditions intolerable for prison confinement.” It diminished job and educational opportunities only “marginally.” The Court had previously noted other facts. The cells measured sixty-three square feet. Each had a cabinet-type night stand and other furnishings. Double-celling had not reduced significantly the availability of space in the day rooms or visitation rooms, nor had it rendered the library or school facilities inadequate. There had been no increase in the rate of violence. The ratio of guards to inmates “satisfied the standard of acceptability” offered by the inmates’ expert witness. This review of the opinion makes it evident that Rhodes v. Chapman does not" }, { "docid": "23605768", "title": "", "text": "record, including all related issues having a common nexus with issues joined in those appeals. Those related issues include the citations for contempt and the mandate to disclose privileged medical/mental health/dental care internal draft peer audits. The eighth amendment limitations on conditions of penal confinement, imposed upon the states through the fourteenth amendment, do not join issues of first impression. The Supreme Court turned its attention and consideration to that area over twenty years ago and, among its more current teachings, summarized its unwavering convictions: Today the Eighth Amendment prohibits punishments which, although not physically barbarous, “involve the unnecessary and wanton infliction of pain,” Gregg v. Georgia, supra, [428 U.S.] at 173, 96 S.Ct., at 2925, or are grossly disproportionate to the severity of the crime, Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977) (plurality opinion); Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910). Among “unnecessary and wanton” inflictions of pain are those that are “totally without penologi cal justification.” Gregg v. Georgia, supra, 428 U.S., at 183, 96 S.Ct., at 2929; Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976). ****** ... But conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society. ****** ... [T]he Constitution does not mandate comfortable prisons, and prisons ... which house persons convicted of serious crimes, cannot be free of discomfort. Thus, these considerations properly are weighed by the legislature and prison administration rather than a court. Chapman, 452 U.S. at 346-47, 349, 101 S.Ct. at 2399-2400 (footnote omitted). In Bell v. Wolfish, the court elaborated on the limits placed by the Constitution on conditions of confinement: [0]ur cases also have insisted on a second proposition: simply because prison inmates retain certain constitutional rights does not mean that these rights are not subject to restrictions and limitations. “Lawful incarceration brings about the" }, { "docid": "19719533", "title": "", "text": "prison official must have acted with deliberate indifference to inmate safety. Id. at —, 114 S.Ct. at 1977. For the purpose of this threshold qualified immunity analysis, we need not reach the question whether the facts alleged show that appellants acted with deliberate indifference. The focus of our review is the objective requirement. We review Eighth Amendment law to determine whether, in light of clearly established principles at the time of the incident, the officials could have believed their conduct was lawful. See Anderson, 483 U.S. at 641, 107 S.Ct. at 3039-40. In Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981), two inmates at the Southern Ohio Correctional Facility (“SOCF”) asserted a cause of action under 42 U.S.C. § 1983, claiming that double celling violated the Constitution. The district court ruled that double celling at SOCF constituted cruel and unusual punishment, based on five considerations: (1) inmates at SOCF were serving long terms of imprisonment, accentuating problems of close confinement; (2) SOCF was housing thirty-eight percent more inmates at the time of trial than its design capacity, and that overcrowding necessarily involved limitations on general movement as well as physical and mental injury from “long exposure”; (3) the court accepted as a contemporary standard of decency studies showing that each person in an institution should have fifty to fifty-five square feet of living quarters minimum, while double celled inmates at SOCF shared sixty-three square feet; (4) a double celled prisoner would spend most of his time in his cell with his cellmate; and (5) at SOCF, double celling was a practice, not a temporary condition. Id. at 343-44, 101 S.Ct. at 2397-98. The Supreme Court stated: “[CJonditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.” Id. at 347, 101 S.Ct. at 2399. The Supreme Court held that the considerations on which the district court relied were insufficient to support its constitutional conclusion." }, { "docid": "5736782", "title": "", "text": "disorders following their commitments after having been found not guilty of a criminal offense by reason of insanity. There is no magic in producing the money to fulfill such a requirement. Quite obviously, the funds are hard to come by when one considers the heavy demands on government services overall. The requirements which have been imposed by the federal courts upon state authorities to build, maintain and provide physical facilities and support personnel at state penal institutions are staggering in terms of available state resources for all governmental needs. There is no right under Bounds to legal representation in civil litigation. The advisement and counseling provided in this case does not deny the appellant access to the courts. Ward’s complaint is vague, uncertain and posed in a shotgun manner. An “expert” in the area of § 1983 would, I believe, have difficulty positing his claims under the federal constitution and/or laws of the United States. For some time, the federal courts have reviewed state prison facilities and conditions, generally under Eighth Amendment cruel and unusual punishment claims. The Supreme Court of the United States admonished us to move with caution in this area in Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). That case involved a constitutional challenge to Ohio’s double-celling requirement at a state penal facility. Under the cruel and unusual punishment provisions of the Eighth Amendment, the Supreme Court rejected the challenge and held that the record did not evidence conditions proving that unnecessary or wanton pain was being inflicted on the Ohio inmates or that the punishment was disproportionate to the crimes committed. Significantly, Justice Powell, writing for the majority, stated that “[T]o the extent that such conditions [of confinement] are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.” Id. at 347, 101 S.Ct. at 2399. And, significantly, the majority pointedly observed that state legislatures and state prison officials can properly weigh considerations affecting the adequacy of prisons because they are sensitive to the dictates of the Constitution. I would uphold" }, { "docid": "22599358", "title": "", "text": "segregation does not constitute a violation of due process, it may constitute cruel and unusual punishment in violation of the Eighth Amendment. The Eighth Amendment prohibits punishments which involve the unnecessary and wanton infliction of pain, are grossly disproportionate to the severity of the crime for which an inmate was imprisoned, or are totally without penological justification. Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 2398, 69 L.Ed.2d 59; Caldwell v. Miller, 790 F.2d at 600. Conditions of confinement, being “part of the penalty that criminal offenders pay for their offenses against society,” fall within the ambit of the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (quoting Rhodes v. Chapman, 452 U.S. at 347, 101 S.Ct. at 2399). The Supreme Court has provided no static “test” for determining whether the particular conditions of confinement constitute cruel and unusual punishment. Instead it has directed that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Rhodes, 452 U.S. at 346, 101 S.Ct. at 2399 (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630). In determining whether there has been an Eighth Amendment violation a court must focus on “the totality of the conditions of confinement.” Madyun v. Thompson, 657 F.2d 868, 874 (7th Cir.1981); French v. Owens, 777 F.2d 1250, 1252 (7th Cir.1985), certiorari denied, — U.S. -, 107 S.Ct. 77, 93 L.Ed.2d 32. The Supreme Court has cautioned, however, that conditions are not unconstitutional simply because they are harsh and restrictive; such conditions are “part of the penalty that criminal offenders pay for their offenses against society.” Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399. Plaintiff complains that by being confined in administrative segregation, she is denied adequate recreation, living space, educational and occupational rehabilitation opportunities, and associational rights for nonpunitive reasons. In Caldwell, we rejected a claim of cruel and unusual punishment arising out of the restrictions associated with the lockdown at the Marion Penitentiary. Among the conditions challenged by the" }, { "docid": "17306098", "title": "", "text": "that the eighth amendment “imposes upon the conditions in which a State may confine those convicted of crimes.” Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 2397-98, 69 L.Ed.2d 59 (1981). Neither the Supreme Court nor the United States Court of Appeals for the Sixth Circuit has ever considered a conditions of confinement claim asserted by women inmates claiming gender-based dis parities in prison conditions violate the equal protection clause. The Court will therefore attempt to set forth its understanding of the controlling principles of law, then apply those principles to the challenged conditions at KCIW. The Court held in Rhodes that “conditions of confinement that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.” 101 S.Ct. at 2399. The Court has emphasized that eighth amendment judgments “should neither be nor appear to be merely the subjective views of individual judges.” Rummel v. Estelle, 445 U.S. 263, 275, 100 S.Ct. 1133, 1139, 63 L.Ed.2d 382 (1980). The Court in Rhodes re-affirmed the proposition that “the Eighth Amendment prohibits punishments which, although not physically barbarous, ‘involve the unnecessary and wanton infliction of pain.’” Rhodes, supra, 101 S.Ct. at 2398, quoting Gregg v. Georgia, 428 U.S. 153, 171, 96 S.Ct. 2909, 2924, 49 L.Ed.2d 859 (1976). The Court summarized the obligation of the federal judiciary in conditions of confinement cases in this manner: When conditions of confinement amount to cruel and unusual punishment, ‘federal courts will discharge their duty to protect constitutional rights.’ (citations omitted). In discharging this oversight responsibility, however, courts cannot assume that state legislatures and prison officials are insensitive to the requirements of the Constitution or to the perplexing sociological problems of how best to achieve the goals of the penal function in the criminal justice system: to punish justly, to. deter future crime, and to return imprisoned persons to society with an improved change of being useful, law-abiding citizens. Rhodes, supra, 101 S.Ct. at 2401-02. Defendants," }, { "docid": "22095241", "title": "", "text": "of a maturing society.’ ” Id. at 346, 101 S.Ct. at 2399 (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958) (plurality opinion)). The court then emphasized the importance of using objective factors in making a determination as to whether prison conditions were cruel and unusual and thus unconstitutional or “restrictive and even harsh” and thus merely a “part of the penalty that criminal offenders pay for their offenses against society.” Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399. Justice Powell, writing for the majority, held that in order for a condition of confinement to be considered cruel and unusual it must be either: (a) “grossly disproportionate to the severity of the crime” warranting punishment, (b) involve the “the wanton and unnec essary infliction of pain” or (c) deprive “inmates of the minimal civilized measure of life’s necessities.” Id. at 347, 101 S.Ct. at 2399. It is important to consider the conditions of confinement as a whole because several deprivations “in combination” may constitute a constitutional violation “when they have a mutually enforcing effect that produces. the deprivation of a single, identifiable human need, such as food, warmth, or exercise — for example a low cell temperature at night combined with a failure to issue blankets.” Wilson v. Seiter, 501 U.S. 294, 304, 111 S.Ct. 2321, 2327, 115 L.Ed.2d 271 (1991). Overall, “[t]he [Eighth] Amendment embodies ‘broad and idealistic concepts of dignity, civilized standards, humanity and decency.’ ” Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976) (quoting Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir.1968)). In Wilson, the Supreme Court adopted the deliberate indifference standard for Eighth Amendment claims involving conditions of confinement. Under this standard “courts considering a prisoner’s claim must ask both if the officials aet[ed] with a sufficiently culpable state of mind and if the alleged wrongdoing was objectively harmful enough to establish a constitutional violation.” Hudson, 503 U.S. at 8, 112 S.Ct. at 999 (internal quotations and citation omitted). In the Tenth Circuit “an official or municipality acts with deliberate" }, { "docid": "8954514", "title": "", "text": "in Rhodes that “when the conditions of confinement compose the punishment at issue,” those conditions “must not involve the wanton and unnecessary infliction of pain, nor may they be grossly disproportionate to the severity of the crime warranting imprisonment.” Id. The Court referred to conditions that are “ ‘totally without penological justification,’ ” id. at 346, 101 S.Ct. at 2399 (quoting Gregg v. Georgia, 428 U.S. 153, 183, 96 S.Ct. 2909, 2929, 49 L.Ed.2d 859 (1976)), as the kind of conditions that violate the Eighth Amendment. Recently, the Court elaborated further on this standard in Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). Justice O’Connor, writing for the Court, observed that “[i]t is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring official control over a tumultuous cell-block.” Id. 106 S.Ct. at 1084. As Rhodes and Whitley make clear, the Eighth Amendment leaves very broad latitude to the states in the administration of their prisons. “[C]onditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.” Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399. Moreover, the federal courts traditionally have adopted a broad hands-off attitude toward problems of prison administration. In part this policy is the product of various limitations on the scope of federal review of conditions in state penal institutions. More fundamentally, this attitude springs from complementary perceptions about the nature of the problems and the efficacy of judicial intervention. Prison administrators are responsible for maintaining internal order and discipline, for securing their institutions against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody. The Herculean obstacles to effective discharge of these duties are too apparent to warrant" }, { "docid": "22095240", "title": "", "text": "Because Mr. Mitchell failed to sue the parties responsible for the beating and does not allege any personal involvement of the parties before the court, we affirm the district court’s dismissal of Mr. Mitchell’s claims for failure to state a cause of action that the beating violated his Eighth Amendment Rights. We now address Mr. Mitchell’s claim that the conditions of the G-unit, or “the rock”, violated his Eighth Amendment Rights. This claim is asserted against Gary Maynard, director of the Oklahoma Department of Corrections, and Mr. Saffie, warden at McAlester. The Supreme Court first addressed the limitations the Eighth Amendment “imposes upon the conditions in which a State may confine those convicted of crimes” in Rhodes v. Chapman, 452 U.S. 337, 345, 101 S.Ct. 2392, 2398, 69 L.Ed.2d 59 (1981). In Rhodes, the court noted that no “static test” can be used by the courts to determine what types of conditions violate the Eighth Amendment, but instead the courts “ ‘must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.’ ” Id. at 346, 101 S.Ct. at 2399 (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958) (plurality opinion)). The court then emphasized the importance of using objective factors in making a determination as to whether prison conditions were cruel and unusual and thus unconstitutional or “restrictive and even harsh” and thus merely a “part of the penalty that criminal offenders pay for their offenses against society.” Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399. Justice Powell, writing for the majority, held that in order for a condition of confinement to be considered cruel and unusual it must be either: (a) “grossly disproportionate to the severity of the crime” warranting punishment, (b) involve the “the wanton and unnec essary infliction of pain” or (c) deprive “inmates of the minimal civilized measure of life’s necessities.” Id. at 347, 101 S.Ct. at 2399. It is important to consider the conditions of confinement as a whole because several deprivations “in combination” may constitute a constitutional violation" }, { "docid": "12909833", "title": "", "text": "S.Ct. at 2462. Youngberg, although not addressed expressly to the issue of prison conditions, nonetheless reasonably suggested a constitutional entitlement of pretrial detainees to a “reasonably safe” prison environment. The Supreme Court’s guidance concerning the Eighth Amendment’s protections for convicted inmates was scarcely more definitive by 1983. In 1976, the Supreme Court held that “deliberate indifference” by prison officials to the medical needs of sick or injured inmates could amount to cruel and unusual punishment where it results in “unnecessary and wanton infliction of pain.” See Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). Two years later, in Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), the Court was presented with a case in which all parties conceded that flagrantly brutal conditions at two Arkansas prisons constituted cruel and unusual punishment. See id. at 685, 98 S.Ct. at 2570-71. It was not until 1981, however, that the Supreme Court “consider[ed] ... for the first time the limitation that the Eighth Amendment ... imposes upon the conditions in which a State may confine those convicted of crimes.” Rhodes v. Chapman, 452 U.S. 337, 344-45, 101 S.Ct. 2392, 2398, 69 L.Ed.2d 59 (1981). In Rhodes, the Court provided some additional definition to the scope of the constitutional right in the course of rejecting a claim that “double-celling” and overcrowding generally in an Ohio prison violated the Eighth Amendment. Prison “[cjonditions must not involve the wanton and unnecessary infliction of pain, nor may they be grossly disproportionate to the severity of the crime warranting imprisonment,” the Court wrote. Id. at 347, 101 S.Ct. at 2399. Moreover, prison conditions may violate the Eighth Amendment if they “deprive inmates of the minimal civilized measure of life’s necessities” such as to offend “the contemporary standard of decency.” See id. Notwithstanding these general rules, however, the Court held that the prison overcrowding described in the case before it, in which convicted prisoners were paired on a long-term basis in cells designed for single occupancy, fell “far short” of making out a constitutional violation. See id." }, { "docid": "5736783", "title": "", "text": "punishment claims. The Supreme Court of the United States admonished us to move with caution in this area in Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). That case involved a constitutional challenge to Ohio’s double-celling requirement at a state penal facility. Under the cruel and unusual punishment provisions of the Eighth Amendment, the Supreme Court rejected the challenge and held that the record did not evidence conditions proving that unnecessary or wanton pain was being inflicted on the Ohio inmates or that the punishment was disproportionate to the crimes committed. Significantly, Justice Powell, writing for the majority, stated that “[T]o the extent that such conditions [of confinement] are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.” Id. at 347, 101 S.Ct. at 2399. And, significantly, the majority pointedly observed that state legislatures and state prison officials can properly weigh considerations affecting the adequacy of prisons because they are sensitive to the dictates of the Constitution. I would uphold the district court’s affirmance and adoption of the recommendations of the magistrate." }, { "docid": "8053656", "title": "", "text": "535, 99 S.Ct. 1861, 1872, 60 L.Ed.2d 447 (1979). These allegations, challenging the conditions of Hamilton’s confinement in and of themselves, are unrelated to the validity of Hamilton’s subsequent convictions and sentences. Thus, a judgment finding the conditions at the DeSoto City Jail unconstitutional would not necessarily imply the invalidity of Hamilton’s subsequent convictions and sentences. Therefore, in order for this claim to be cognizable under § 1983, Hamilton need not prove that his convictions or sentences have been reversed, expunged, invalidated, or otherwise called into question. We now address the merits of this claim. The Eighth Amendment prohibits punishments which are cruel and unusual. Prison conditions constitute cruel and unusual pumshment if they involve the “wanton and unnecessary infliction of pain [or if they are] grossly disproportionate to the severity of the crime warranting imprisonment.” Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399; see also Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976) (holding deliberate indifference to an inmate’s medical needs to be cruel and unusual); Hutto v. Finney, 437 U.S. 678, 687, 98 S.Ct. 2565, 2571, 57 L.Ed.2d 522 (1978) (finding prison conditions marked by insufficient diet, severe overcrowding, rampant violence, vandalism, and extended punitive isolation to be cruel and unusual). However, prison conditions are not unconstitutional simply because they are restrictive; restrictive conditions “are part of the penalty that criminal offenders pay for their offenses against society.” Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399. In Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), the Supreme Court evaluated the constitutionality of conditions of confinement of pretrial detainees. Because they have not yet been convicted of the crime with which they are charged, pretrial detainees have a due process right not to be punished for that crime. Id. at 535 n. 16, 99 S.Ct. at 1872 n. 16. The Supreme Court has stated the distinction between conditions that may be constitutionally imposed on convicted prisoners and conditions that may be imposed on pretrial detainees as follows: [T]he State does not acquire the power to" }, { "docid": "14181972", "title": "", "text": "the Penal Farm is clean, efficient, and maintained by a competent staff. Defendants ' have attached reports of the Knox County Grand Jury and the Tennessee Corrections Institute and an affidavit by defendant Bill Russell in support of this claim. Therefore defendants’ motion to dismiss will be treated as a motion for summary judgment. Fed.R.Civ.P. 12(b). The eighth amendment prohibits the imposition of cruel and unusual punishment. Conditions of penal confinement “must not involve the wanton and unnecessary infliction of pain, nor may they be grossly disproportionate to the severity of the crime warranting imprisonment.” Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981); Grubbs v. Bradley, 552 F.Supp. 1052, 1120-1121 (M.D.Tenn.1982). Whether conditions of confinement are cruel and unusual must be determined “ ‘from the evolving standards of decency that mark the progress of a maturing society.’ ” Rhodes, 452 U.S. at 346, 101 S.Ct. at 2399, quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958). “To the extent that such conditions are restrictive and harsh, [but do not offend contemporary standards of decency] they are part of the penalty that criminal offenders pay for their offenses against society.” Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399. In determining whether conditions of confinement are cruel and unusual, the Court must keep in mind that wide-ranging deference must be accorded the decisions of prison administrators. Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). Further, “[a]bsent a clear finding of constitutional violations, federal courts simply will not interfere with the state’s administration of its prison system.” Grubbs, 552 F.Supp. at 1124, citing Johnson v. Avery, 382 F.2d 353, 355 (6th Cir.1967), rev’d on other grounds, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969). With these principles in mind, the Court will consider the conditions of confinement which plaintiff alleges violate his rights under the eighth amendment. Plaintiff states that the institution does not furnish a change of clothing. The inspection report of the Tennessee Corrections Institute, dated January 24, 1983, indicates" }, { "docid": "5736781", "title": "", "text": "forms easily understood and which, with simple guidance, may be completed for filing. In this case, the record shows that the law firm does procure the forms, reviews them and advises the inmates concerning their proper completion for filing. Nothing more is constitutionally required. The majority opinion would seem to require some expertise on the part of the law firm for counseling in the area of civil rights. A private person with a justifiable cause would not be entitled, ipso facto, to ■an expert. If financially able, he or she could obtain the services of such an expert upon payment of a fee. If entitled to legal aid such as that provided to indigents by Legal Services, such aid does not include an “expert” counselor. In most cases the private litigant contacts his general practitioner and seeks his advice and counsel. It is unreasonable to expect the State of Colorado or any other state to provide “adequate” law libraries not only at its penal facilities, but, in addition, at its hospitals treating inmates for mental disorders following their commitments after having been found not guilty of a criminal offense by reason of insanity. There is no magic in producing the money to fulfill such a requirement. Quite obviously, the funds are hard to come by when one considers the heavy demands on government services overall. The requirements which have been imposed by the federal courts upon state authorities to build, maintain and provide physical facilities and support personnel at state penal institutions are staggering in terms of available state resources for all governmental needs. There is no right under Bounds to legal representation in civil litigation. The advisement and counseling provided in this case does not deny the appellant access to the courts. Ward’s complaint is vague, uncertain and posed in a shotgun manner. An “expert” in the area of § 1983 would, I believe, have difficulty positing his claims under the federal constitution and/or laws of the United States. For some time, the federal courts have reviewed state prison facilities and conditions, generally under Eighth Amendment cruel and unusual" }, { "docid": "22330057", "title": "", "text": "v. Woodson, 443 F.2d 360 (10th Cir. 1971); Bethea v. Crouse, 417 F.2d 504 (10th Cir.1969). That federal judges’ individual views may be that a particular aspect of prison operation or administration is inept or undesirable does not compel the conclusion that the practice (or lack thereof) is necessarily constitutionally offensive. An Eighth Amendment cruel and unusual punishment challenge must be placed in proper context. That was definitively accomplished, in my view, in the case of Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). The majority in Rhodes (Justice Powell was joined by Chief Justice Burger, and Justices Stewart, White and Rehnquist) held that conditions creating “cruel and unusual” punishment under the Eighth Amendment must meet the measure of one of three queries: (a) is the punishment “grossly disproportionate to the severity of the crime” warranting punishment; (b) do the conditions involve “the wanton and unnecessary infliction of pain”; or (c) do the conditions deprive “inmates of the minimal civilized measure of life’s necessities.” Id. at 347, 101 S.Ct. at 2399. The majority in Rhodes observed that the record there did not evidence conditions proving that unnecessary or wanton pain was inflicted on the Ohio inmates or that the punishment was disproportionate to the crimes committed. Furthermore, the Court placed less weight on the opinions of experts and standards promulgated by correctional agencies than upon the public attitude. In dictum, this emphasis was explained. The Rhodes majority observed that harsh or restrictive conditions of confinement are. part of the punishment criminal offenders justly receive; the Constitution does not mandate comfortable prisons. Justice Powell wrote that “[t]o the extent that such conditions [of confinement] are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.” Id. at 347, 101 S.Ct. at 2399. Of particular import here, the Rhodes majority observed that state legislatures and state prison officials can properly weigh considerations affecting the adequacy of prisons because they are sensitive to the dictates of the Constitution, the problem of just punishment, the deterrence of future crime, and" }, { "docid": "6904506", "title": "", "text": "to identify eight specific conditions that appellants assert amount to infliction of cruel and unusual punishment: (1) unsanitary eating conditions; (2) inadequate heating and cooling; (3) housing with mentally ill inmates; (4) housing with physically ill inmates; (5) inadequate ventilation; (6) excessive noise; (7) insect infestation; and (8) overcrowding. Since appel-lees’ affidavits refute, to some degree, appellants’ claims concerning these conditions, genuine issues of fact exist regarding same. Our task, then, is to determine whether these issues are material, requiring an examination of the substantive law regarding eighth amendment confinement conditions claims. Rhodes, supra, sets forth a flexible standard for ascertaining whether prison conditions amount to cruel and unusual punishment. In evaluating prison conditions, we recognize that the eighth amendment “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.” Id. 452 U.S. at 346, 101 S.Ct. at 2399, (quoting Trap v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958) (plurality opinion)). Thus, “[cjonditions must not involve the wanton and unnecessary infliction of pain, nor may they be grossly disproportionate to the severity of the crime warranting imprisonment.” Id. 452 U.S. at 347, 101 S.Ct. at 2399. Yet, “conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional,” and “[t]o the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.” Id. Subsequent to Rhodes, this circuit has interpreted its language as requiring an examination of “all the prison’s conditions and circumstances, rather than isolated conditions and events, when addressing eighth amendment claims.” Walker v. Mintzes, 771 F.2d 920, 925 (6th Cir.1985). Moreover, “[i]n certain extreme circumstances the totality itself may amount to an eighth amendment violation, but there still must exist a specific condition on which to base the eighth amendment claim.” Id. Specific conditions found to violate the eighth amendment include the denial of adequate access to shower facilities, Preston v. Thompson, 589 F.2d 300 (7th Cir. 1978); denial of medical treatment, Estelle v. Gamble, 429" }, { "docid": "22662136", "title": "", "text": "adopted the magistrate’s recommendation and dismissed the suit. The inmates filed a timely notice of appeal, and moved for permission to proceed on appeal in forma pauperis. The district court refused to certify the appeal in forma pauperis, stating that the claims were “frivolous” and noting that “[t]his inmate has filed some 42 pro se actions under 42 U.S.C. § 1983 .... ” As there are in fact three inmate claimants, it is difficult to determine to which inmate the court referred. Pursuant to Federal Rule of Appellate Procedure 24(a), the inmates move in this Court for permission to proceed on appeal in forma pauperis. I. General Eighth Amendment Claims In Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 2396, 69 L.Ed.2d 59 (1981), the Supreme Court considered the limitation the eighth amendment imposes “upon the conditions in which a state may confine those convicted of crimes.” Id. at 344-45, 101 S.Ct. at 2397-98, 69 L.Ed.2d at 67-68. The Court noted that the “serious deprivation of basic human needs .. . could be cruel and unusual under the contemporary standard of decency that we recognized in [Estelle v.] Gamble, [429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)].” 452 U.S. at 346, 101 S.Ct. at 2399, 69 L.Ed.2d at 69. The Rhodes Court noted that the eighth amendment “prohibits punishments which, although not physically barbarous, ‘involve the unnecessary and wanton infliction of pain.’ ” Id., 452 U.S. at 345, 101 S.Ct. at 2398, quoting Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (joint opinion). Conditions of confinement must not involve the wanton and unnecessary infliction of pain; nor may they be grossly disproportionate to the severity of the crime warranting imprisonment. 452 U.S. at 346, 101 S.Ct. at 2398, 69 L.Ed.2d at 68. “But conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.” 452 U.S. at 347, 101 S.Ct. at" }, { "docid": "2684951", "title": "", "text": "2398-99 (citations omitted). The Court held that conditions of confinement may constitute cruel and unusual punishment: These principles apply when the conditions of confinement compose the punish.ment at issue. Conditions must not involve the wanton and unnecessary infliction pain, nor they may be grossly disproportionate to the severity of the crime warranting imprisonment. 452 U.S. at 347, 101 S.Ct. at 2399. Noting that in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), and Hutto v. Finney, 437 U.S. 678, 98 S-.Ct. 2565, 57 L.Ed.2d 522 (1978), Eighth Amendment violations were found where prison conditions caused “pain without any penological purpose,” or where they “resulted in unquestioned and serious deprivations of basic human needs,” the Court made clear that: [conditions other than those in Gamble and Hutto, alone or in combination, may deprive inmates of the minimal civilized measure of life’s necessities. Such conditions could be cruel and unusual under the contemporary standard of decency that we recognized in Gamble____ But conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society. 452 U.S. at 348, 101 S.Ct. at 2400. Finally, Rhodes emphasized that the lower courts, while obligated to enforce the Constitution, must take care not to confuse the requirements of the Constitution with their own personal views as to how jails and prisons should be run. Although “[wjhen conditions of confinement amount to cruel and usual punishment, ‘federal courts will discharge their duty to protect constitutional rights,’ ” 452 U.S. at 352, 101 S.Ct. at 2402 (citation omitted), [i]n assessing claims that conditions of confinement are cruel and unusual, courts must bear in mind that their inquiries “spring from constitutional requirements and that judicial answers to them must reflect that fact rather than a court’s idea of how best to operate a [correctional] facility.” 452 U.S. at 351, 101 S.Ct. at 2401 (citation omitted). Plaintiffs’ Eighth Amendment claims must be examined with these" }, { "docid": "8954513", "title": "", "text": "Hillard, 804 F.2d 440 (8th Cir.1986). After further briefing and oral argument to the Court en banc, we now reverse the District Court’s order with respect to double-celling. The facts of the case are detailed in the panel opinion, 799 F.2d at 448-49, and in the extensive factual findings of the District Court, Cody v. Hillard, 599 F.Supp. 1025, 1026-46 (D.S.D.1984). We will not repeat them here. As recognized by the District Court, the panel majority, and the panel dissent, the inmates’ Eighth Amendment claims regarding the conditions of their confinement are governed by the Supreme Court’s opinion in Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). In Rhodes, the Supreme Court specifically considered whether double-celling at an Ohio prison constituted cruel and unusual punishment under the Eighth Amendment. The Court held, based on the undisputed factual findings of the district court, that the “conclusion that double celling at [the Ohio facility] constitutes cruel and unusual punishment is insupportable.” Id. at 347, 101 S.Ct. at 2400. The Court made clear in Rhodes that “when the conditions of confinement compose the punishment at issue,” those conditions “must not involve the wanton and unnecessary infliction of pain, nor may they be grossly disproportionate to the severity of the crime warranting imprisonment.” Id. The Court referred to conditions that are “ ‘totally without penological justification,’ ” id. at 346, 101 S.Ct. at 2399 (quoting Gregg v. Georgia, 428 U.S. 153, 183, 96 S.Ct. 2909, 2929, 49 L.Ed.2d 859 (1976)), as the kind of conditions that violate the Eighth Amendment. Recently, the Court elaborated further on this standard in Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). Justice O’Connor, writing for the Court, observed that “[i]t is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring official control over a tumultuous cell-block.” Id. 106 S.Ct. at 1084. As Rhodes and Whitley make clear, the Eighth" } ]

[ { "docid": "8421962", "title": "", "text": "Holt, and Pruitt, supra. Accordingly, the Court is compelled to consider whether this profit sharing and trust agreement would qualify as a spendthrift trust under Florida law and thus, be excepted from the estate pursuant to § 541(c)(2). Spendthrift trusts are designed to provide a fund for the maintenance of the beneficiary while at the same time securing it against the beneficiary’s own improvidence and incapacity. Croom v. Ocala Plumbing & Electric Co., 62 Fla. 460, 57 So. 243 (1911). The typical spendthrift trust bars the voluntary or involuntary alienation of the life beneficiary’s interest in his right to receive income. Waterbury v. Munn, 32 So.2d 603 (Fla.1947). In order to create a spendthrift trust, the settler must clearly manifest his intent to restrain the beneficiary from alienating his interest. Lowell, Florida Law of Trusts, § 27-1 (1976). However, where a debtor has the power to terminate the trust or reach the corpus to give him virtually absolute dominion over the trust, a spendthrift clause does not secure the property from the creditors. Croom, supra; In re Watson, 13 B.R. 391 (Bankr.M.D.Fla.1981). In the present proceeding, the Debt- or has a vested interest in $5,000 and may compel its distribution. This right to receive the $5,000 coupled with the Debtors’ ability to borrow from the trust fund makes it apparent that the Debtor has sufficient control over the funds to remove them from the protection of the spendthrift restrictions. The Debtors further contend that the spendthrift restrictions are valid despite the power of the Debtor to terminate employment and compel distribution. In support of their proposition, the Debtors rely on Waterbury, where there were five beneficiaries three of which were also the trustees. The Florida supreme court in Waterbury upheld the spendthrift restrictions even though the trustee had the power to sell the trust corpus and distribute the proceeds. This Court does not find Waterbury, supra controlling under the facts presented in this case. Not all of the beneficiaries in Waterbury had the power to terminate the trust or compel the trustee to distribute the corpus. Based on the foregoing," } ]

[ { "docid": "18613471", "title": "", "text": "rights to the proceeds are limited to the amount presently available for withdrawal by the Debtor. The Debtor urges the Court to follow the decision of In re Silldorff, 96 B.R. 859 (C.D.Ill.1989). In Silldorff the Court held that although the debtor’s pension plan was unenforceable as a spendthrift trust and thus became part of the bankruptcy estate; the trustee succeeds only to the debtor’s limited rights to request a distribution. Id. at 867; See also In re Loe, 83 B.R. 641, 646 (Bankr.D.Minn.1988). In both Silldorff and Loe the debtors were participants in ERISA plans similar to Hallmark’s and were entitled to receive their entire vested interests upon termination of employment. Silldorff holds that the Trustee was not entitled to compel a lump sum distribution from the plan because “filing of a petition does not terminate an employee’s relationship with an employer, nor does it increase the amount of assets in which the debtor may have held an interest; it merely changes the party who can demand or claim the assets.” 96 B.R. at 859. The Silldorff court equates the right of distribution from the pension with termination of employment. The proper analysis seems to be not whether the Debtor is presently entitled to receive a distribution, but instead, whether the debtor has rights which allow him to control distribution. It is the Debtor’s rights to exercise dominion and control over the Profit Sharing Plan that render the Plan unenforceable as a spendthrift trust in this case. The Trustee, although having no power to terminate the Debtor’s employment relationship at Hallmark, succeeds to the same rights to control distribution of the proceeds. Since the Debtor can absolutely obtain the proceeds, at any time, by terminating his employment, the Trustee in bankruptcy succeeds to that absolute right to compel distribution. Although not addressing this issue directly, the cases cited supra from the Eighth Circuit, with the exception of Loe, follow this approach. A recent decision, In re Mead, 110 B.R. 434 (Bankr.W.D.Mo.1990) indicates that when the beneficiary has the ability to obtain his vested interest upon retirement or termination that" }, { "docid": "18613469", "title": "", "text": "absolute dominion and control over his interest by terminating his employment at Hallmark. It is at this point where the Court must part company with the Boon decision. The Court interprets Boon as limited to its facts. In this case, the Court agrees with the Trustee that In re Swanson, supra controls the result. In Swanson, the Court considered whether a Teachers Retirement Fund which entitled the participants to a full refund upon termination of employment was a traditional spendthrift trust. Swanson indicates that even a “very limited right of control” such as this is sufficient to invalidate a spendthrift trust provision. 873 F.2d at 1124. The Debtor has an absolute right to receive his entire vested interest in the Profit Sharing Plan following termination of employment. If the vested amount exceeds $3,500.00 the Debtor has the option to either take the distribution as a single lump sum payment or in annual installments for a period of years selected by the Debtor. The Debtor’s ability to dictate both the time and method of distribution is additional evidence of dominion and control maintained by the Debtor over the proceeds in the Plan. The purpose of a traditional spendthrift trust is to “provide periodic payments, for the maintenance and support, of an individual to whom the settlor does not choose to entrust the entire gift all at once.” In re Mead, 110 B.R. 434, 438 (Bankr.W.D.Mo.1990). The Hallmark Profit Sharing Plan allows the Debtor to make substantial withdrawals for purposes other than maintenance and support. To allow the Debtor to shield funds in the Profit Sharing Plan from the claims of his creditors is contrary to the traditional purpose of a spendthrift trust. Spendthrift trust provisions violating public policy are unenforceable in Missouri. Electrical Workers Local No. 1 Credit Union v. IBEW-NECA Holiday Trust Fund, 583 S.W.2d 154 (Mo. banc 1979). The Court holds that the Hallmark Employee Profit Sharing and Ownership Plan is not enforceable as a spendthrift trust under Missouri law. C. TRUSTEE’S RIGHTS IN THE PROFIT SHARING PLAN The Court must now consider the Debtor’s argument that the Trustee’s" }, { "docid": "1184685", "title": "", "text": "plans are excluded from property of the estate. See also In re Burns, 108 B.R. 308 (Bankr.W.D.Okla.1989); In re Komet, 104 B.R. 799 (Bankr.W.D.Tex.1989). Notwithstanding the foregoing, the law is clear in this Circuit that “applicable non-bankruptcy law” refers only to state spendthrift trust law. In re Lichstrahl, 750 F.2d 1488 (11th Cir.1985). See also In re Daniel, 771 F.2d 1352 (9th Cir.1985), cert. denied, 475 U.S. 1016, 106 S.Ct. 1199, 89 L.Ed.2d 313 (1986); In re Graham, 726 F.2d 1268 (8th Cir.1984); In re Goff, 706 F.2d 574 (5th Cir.1983). Thus, it is necessary to consider whether the plans under consideration constitute spendthrift trusts under Florida law. As noted by this Court in In re Martin and In re Langford, 119 B.R. 297 (Bankr.M.D.Fla.1990), and cases cited therein, courts generally have not classified interests in ERISA plans as spendthrift trusts because the debtor usually has the ability to reach and manipulate his interests in the plan, even if to do so would terminate the debtor’s employment and interest in the plan. Further, courts have considered the fact that the employee may generally borrow against the plan and may withdraw his contributions to the plan under certain circumstances. Under Florida law, the purpose of spendthrift trusts is to protect the beneficiary not only from himself, but also from his creditors. Croom v. Ocala Plumbing & Electric Co., 62 Fla. 460, 57 So. 243 (1911). The typical spendthrift trust bars the voluntary or involuntary alienation of the beneficiary’s interest in his right to receive the trust income. Waterbury v. Munn, 159 Fla. 754, 32 So.2d 603 (1947). Where the beneficiary has the ability to require the trust administrator to convey trust property to him or her, the beneficiary has dominion and control over the trust res sufficient to defeat the validity of the spendthrift trust. Thus, in the last analysis, the ultimate question is whether the Debtors’ ability to reach their interests in the plans rises to the level of asserting a sufficient degree of dominion and control over their funds in the plans, thus to negate the spendthrift character of" }, { "docid": "18162664", "title": "", "text": "employment, and that they are no longer applicable to retirement trusts due to a 1992 statutory amendment. She takes the position, however, that the line of cases is still controlling law concerning a beneficiary’s dominion and control over distributions in other settings. For example, the Trustee relies on the leading case on this issue, In re Mark-mueller, supra. The debtor in Markmuel-ler was a co-settlor with his wife of a trust in which they named themselves as co-trustees and beneficiaries. It is important to note that, unlike the Debtor in the present case, the one in Markmueller had the right to revoke, alter, or amend the trust. When his wife died, the debtor became the sole trustee and beneficiary. The debtor filed for bankruptcy and claimed that his interest in the trust was excludable from the bankruptcy estate as an enforceable spendthrift trust. The trustee argued that the trust assets were property of the estate because the spendthrift provision was invalid under Missouri law. The bankruptcy court agreed, and ordered the debtor to turn over the assets. The district court affirmed, finding that the spendthrift provision was invalid because the debtor impermissibly exercised dominion and control over the trust assets. The Eighth Circuit invalidated the provision on two grounds: 1) the debtor had the right to revoke, alter or amend the trust, and 2) the debtor, as trustee, had absolute control over the management and use of the trust estate for any purpose, thus exercising an impermissible degree of control over the trust assets. Id. at 776-77. See also In re Davis, supra (ESOP plan was invalid spendthrift trust under Missouri law where debtor, as employee and beneficiary, was entitled to vote her shares, receive a lump sum payment upon her termination of employment, make contributions and -withdrawals, and receive loans). The Trustee also cites In re Edelmann, supra, for the proposition that the fact that the Debtor does not have the power to revoke the Trust is immaterial. In Edel-mann, the debtor and his wife established a trust and transferred assets into it. The proceeds generated by the trust" }, { "docid": "1184677", "title": "", "text": "222.21(2)(a). The Avondale Industries, Inc., ESOP is funded by contributions made by the company only, which may vary from year to year in the total discretion of the company’s Board of Directors. The shares of the company are not currently traded on an established securities market. Mr. Spears is entitled to receive the entire stock held in the ESOP for his benefit upon death, retirement, disability, or by reaching age 55 after ten years of service with the company. If Mr. Spears terminates his employment, he is entitled to receive his vested interests in the ESOP. (Debtors’ Composite Exh. No. 1). There is no evidence before this Court regarding the value of Mr. Spears’ interest in the ESOP. The record reveals that Mrs. Spears’ interest is 100% vested in both plans with Delchamps for a total value of $6,488.50. (Debtors’ Composite Exh. No. 1). However, the terms of these plans are not part of this record. The Debtors now claim that in addition to being exempt pursuant to Fla.Stat. § 222.21(2)(a), the plans “are exempt property, pursuant to 11 U.S.C. § 522(b) due to the fact that Debtors do not have dominion or control over monies deposited in the ... plans.” Despite the confusing nature of this statement, it appears the Debtors contend that either the plans qualify as spendthrift trusts; thus, their interests in the plans are not property of the estate, or that the ERISA plans qualify as separate federal exemptions pursuant to 11 U.S.C. § 522(b)(2)(A). IN RE BRASWELL In the case of Henry and Donna Bras-well, Case No. 90-4507, the Debtors filed their Chapter 7 voluntary Petition for Relief on May 10, 1990. On their B-4 Schedule of Exemptions, the Debtors claimed Mrs. Braswell’s interest in a 401-K retirement plan with George C. Winn, P.A., and Mr. Braswell’s interests in a 401-K. retirement plan with Miles, Inc., as exempt pursuant to Fla.Stat. § 222.21(2)(a). The Miles Pension Plan in which Mr. Braswell has an interest provides that the benefits resulting from the plan may be received upon either retirement, disability or death. Retirement may come at" }, { "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": "1184687", "title": "", "text": "these plans. Under his plan, Mr. Spears may reach his vested interests under the plan upon termination of employment, whether by quitting, death, retirement, disability or upon reaching the age of 55 after ten years of service with the company. The feature of this plan permitting Mr. Spears to reach his vested interests in the plan by quitting his employment, is certainly inconsistent with any recognized characteristics of a classical spendthrift trust under Florida law. Based on the foregoing, this Court is satisfied that the Avondale Industries plan is not a spendthrift trust, thus, the funds in the plan are property of the estate. In contrast, Mr. Braswell may not reach his interests in his plan with Miles, Inc., until age 55, death or disability. He is not able to manipulate his interests in the funds in any manner, therefore, this Court is satisfied that his plan qualifies as a spendthrift trust under Florida law. The same is true for Mr. Atzkatz, who may likewise reach his interests in the plan with US Air only upon retirement, death or disability. Thus, this Court is satisfied that the Trustees’ Objections regarding Mr. Braswell and Mr. Atzkatz should be overruled as these plans are not property of the estate. Based on the foregoing, the alternative arguments advanced by Mr. Bras-well and Mr. Atzkatz that their interests in their respective plans are exempt are moot. However, for purposes of discussion, this Court will nevertheless address the merits of those arguments below. Fla.Stat. § 222.21(2)(a) It is urged by the Debtors that even assuming their interests in the plans are property of the estate, they are exempt pursuant to Fla.Stat. § 222.21(2)(a). This Section enacted by the Florida Legislature in 1987 provides as follows: (2)(a) Except as provided in paragraph (b), any money or other assets payable to a participant or beneficiary from, or any interest of any participant or beneficiary in a retirement or profit-sharing plan that is qualified under s. 401(a), s. 403(a), s. 403(b), s. 408, or s. 409 of the Internal Revenue Code of 1986, as amended, is exempt from" }, { "docid": "18580737", "title": "", "text": "an ERISA pension plan was a valid spendthrift trust under Illinois law. In re McLean, 762 F.2d 1204 (4th Cir.1985), was an appeal from a district court judgment upholding the bankruptcy court’s order that Central States Pension Fund pay to the trustee of a debtor’s Chapter 13 plan certain pension funds due the debtor. While this court recognizes that McLean involved a different type of bankruptcy proceeding, the approach which the Fourth Circuit took in determining the pension plan’s validity as a spendthrift trust is enlightening. The Fourth Circuit said: Contributions to the Central Fund are made only by employers and the employees have no power to revoke the trust and reach its corpus. Public policy concerns would not therefore prevent enforcement of this restriction under controlling nonbankruptcy state [Illinois] law. 726 F.2d, at 1207. McLean, decided after the bankruptcy court had entered its order as to the ASMP proceeds in this case, adopts the holding of In re Kwaak, 42 B.R. 599 (Bktcy.D.Maine 1984), which this court also finds persuasive. Kwaak concerned a Chapter 7 debtor’s interest in an employer-financed stock bonus and profit-sharing retirement trust under ERISA. The plan did not allow withdrawals, except upon the employee’s death, termination, disability or upon the termination of the plan. All deposits to the trust were made by the employer, and the plan involved no active participation by the employee. He had no control over his benefits. Based on these characteristics, the court in Maine held that the trust benefits were excludable from the estate as a spendthrift trust. In the trust before this court, however, the beneficiary cannot withdraw funds, deposit funds, borrow against his interest, or manage the deposits in any way. These characteristics encourage the finding that the plan creates a spendthrift trust under state law. The debtor is the beneficiary for whom a trust has been designated by the employer-settlor, who has attempted to protect the debtor from his own improvidence by retaining control over the assets. See In re Goff, supra. As a result of its being analogous to a state law spendthrift trust, the plan" }, { "docid": "16470081", "title": "", "text": "could be revocably assigned under § 1056(d). In the present case, the debtor’s plan contains an absolute restriction on alienation or assignment of plan benefits, and there is no question, as in LeFeber, regarding the sufficiency of the plan’s anti-alienation clause. However, the plan here, unlike that in LeFeber, contains a provision allowing the withdrawal of plan benefits prior to completion of the plan according to its terms. While the debtor’s plan precludes creditors from reaching the plan assets, it fails to protect the plan assets from invasion by the debtor himself. Thus, the plan fails as a spendthrift trust to the extent that the debtor can compel a premature distribution of plan assets, as this is contrary to the purpose and requirements of a spendthrift trust under Indiana law. The Board asserts that even if fund assets are found to be property of the estate, the trustee cannot recover these funds for the estate because, at the time the debtor filed his bankruptcy petition, the debtor had not resigned his ordination and had no present right to withdraw his contributions from the plan. The Board relies upon In re Silldorff, in which the court, after finding that the debtors’ interests in the subject pension plans were property of their bankruptcy estates because plan participants could access the vested corpus of their pension by terminating their employment, concluded that the trustee had no right to compel distribution of the pension funds because the debtors had not terminated their employment at petition date and had no present right to demand the funds. See also In re Balay: trustee not entitled to receive funds which the debtor himself “was not able to presently access” because he had not terminated his employment. Both the Silldorff and Balay courts cited the well-established principle that a trustee’s claim to estate property is no greater than a debtor’s claim at the time of filing. See 11 U.S.C. § 541(a)(1). Like at least one court that has rejected the Silldorff position, this Court finds the reasoning of Silldorff and Balay to be anomalous and inconsistent. See In" }, { "docid": "10195812", "title": "", "text": "566, 435 P.2d 73, 75 (1968). The debtor essentially argues that the Kaplan Plan is a spendthrift trust because it contains an anti-alienation provision. However, no special language is required to create a spendthrift trust. Restatement (Second) of Trusts § 152 comment c (1959). Rather, courts look at the amount of “dominion and control” exercised by the debtor over the trust property to determine whether a spendthrift trust exists. See Matter of Brooks, 844 F.2d 258 (5th Cir.1988); In re Daniel, 771 F.2d 1352 (9th Cir.1985); In re Lichstrahl, 750 F.2d 1488 (11th Cir.1985); In re Graham, 726 F.2d 1268 (8th Cir.1984). The debtor relies on In re West, 81 B.R. 22 (9th Cir.BAP 1987) to support his theory that the Kaplan Plan constitutes a spendthrift trust. In West, the debtor, as an employee of Intel Corporation, was automatically a participant in a qualified ERISA plan. The debtor was not a director or officer of the corporation, and he was not the trustee of the plan. Id. at 24. He had no interest in the corporation (other than 10 shares of corporate stock he acquired through the plan) and his only inter est in the plan was the contributions by his employer. Although the debtor could borrow, with restrictions, from vested portions contributed by the employer, he could not withdraw employer contributions until he reached age 60, was terminated, became disabled, or died. Both the BAP and the bankruptcy court held that the debtor’s qualified ERISA plan constituted a spendthrift trust under applicable state law. The facts in the instant case differ greatly from those in West because the debtor is involved in virtually every aspect of the decision-making process of the corporation and the Kaplan Plan. He is a shareholder and director of PRA, which entitles him to control the operation of the business. He is the trustee, the sole beneficiary, and the administrative committee of the Kaplan Plan. He may borrow from the plan, and the fact that he has not done so is irrelevant. As trustee, he has control over the investment of the benefits, and he" }, { "docid": "1909979", "title": "", "text": "In re Ryan, 70 B.R. 509, 15 B.C.D. 910 (Bkrtcy.D.Mass.1987); In re Investment Sales Diversified, Inc., 49 B.R. 837 (Bkrtcy.D.Minn.1985). Here, the Trustee is charged with constructive notice of ROSA’s interest by reason of the dissolution decree filed in the records of the office of the Peoria County Circuit Clerk, and is not a bona fide purchaser. In sum, this Court concludes that ROSA’s interest in the real estate never became a part of the bankruptcy estate and that the Trustee held the real estate for her benefit. Having sold the real estate, the Trustee is directed to pay over the net proceeds from the sale to her. ROSA also objects to the debtor’s claim of exemptions, contending that the debtor’s pension plan through his present employer, Caterpillar Inc., is part of the bankruptcy estate which is not exempt under Section 12-1001(g)(5) of the Illinois Code of Civil Procedure. (Ill.Rev.Stat. 1985, ch. 110, par. 12-1001(g)(5)). She further contends that the pension plan is subject to a constructive trust. At the time the debtor filed his bankruptcy petition, his interest in the pension plan was vested and the debtor could begin drawing the funds upon his retirement. The debtor is 55 years old and may possibly continue to work at Caterpillar Inc., until he reaches age 70. The debtor contends that the pension fund constitutes a valid spendthrift trust under Illinois law and is not property of the bankruptcy estate. Judge Lessen, also sitting in the Bankruptcy Court in the Central District of Illinois, in In re Dagnall, No. 86-71507, May 14, 1987, sided with those courts which have held that pension plans are not part of the bankruptcy estate only if they qualify under applicable state law as true spendthrifts trusts. Summarizing the nature of a spendthrift trust, Judge Lessen stated: “In general, a spendthrift trust is a trust created with the view of providing funds for the maintenance of another, and at the same time securing the beneficiary against his own improvidence or incapacity for self-protection. The beneficiary’s interest is neither transferable by the beneficiary nor leviable by creditors." }, { "docid": "18582203", "title": "", "text": "427.150(1)(b) exists under Florida law. Accordingly, the Court finds that the IRA is not exempted from the Debtors’ estate. The ERISA Plans The ERISA Plans contain identical termination and distribution provisions in Article 12 of each plan. Under Article 12, Gillett Plumbing had authority to terminate a plan “at any time” or undertake a partial termination for individual participants such as Mr. Gillett. Upon termination, the participants’ interests would automatically vest and their share of the trust funds could be distributed to them. Thus, Gillett Plumbing had direct control over the termination of the ERISA plans, and ultimately, the distribution of funds held in trust’pursuant to the plans. The Debtors maintain that the Non-alienation of Benefits provision of the ERI-SA Plans makes Mr. Gillett’s interest as a participant in the ERISA Plans not includible in his bankruptcy estate under 11 U.S.C. § 541(c)(2). Section 541(c)(2) carves out an exception to the broad scope of § 541(a). Section 541(c)(2) preserves restrictions on the transfer of a beneficial interest of a debtor in a trust which is enforceable under applicable non-bankruptcy law, and thus precludes such an interest from being included as property of the debtor’s bankruptcy estate. The section’s reference to “applicable non-bankruptcy law” refers only to state spendthrift trust law. In Re Lichstrahl, 750 F.2d 1488 (11th Cir.1985). Therefore, Mr. Gillett’s interest in the plans are excluded from the estate only if the ERISA Plans are enforceable under state law as spendthrift trusts. Where the beneficiary of a spendthrift trust has the right to require the trustee to convey trust property to him, then the beneficiary has dominion and control over the trust res and the trust will fail as a spendthrift trust. Croom v. Ocala Plumbing and Electric Co., 62 Fla. 460, 57 So. 243 (1911). As sole stockholders, directors and officers of Gillett Plumbing, the Debtors controlled Gillett Plumbing. Using this control, the Debtors could, at any time, terminate the ERISA Plans and thereby effectuate the distribution to Mr. Gillett of the funds held for his benefit pursuant to the plans. The fact that the Debtors, in terminating" }, { "docid": "1184686", "title": "", "text": "considered the fact that the employee may generally borrow against the plan and may withdraw his contributions to the plan under certain circumstances. Under Florida law, the purpose of spendthrift trusts is to protect the beneficiary not only from himself, but also from his creditors. Croom v. Ocala Plumbing & Electric Co., 62 Fla. 460, 57 So. 243 (1911). The typical spendthrift trust bars the voluntary or involuntary alienation of the beneficiary’s interest in his right to receive the trust income. Waterbury v. Munn, 159 Fla. 754, 32 So.2d 603 (1947). Where the beneficiary has the ability to require the trust administrator to convey trust property to him or her, the beneficiary has dominion and control over the trust res sufficient to defeat the validity of the spendthrift trust. Thus, in the last analysis, the ultimate question is whether the Debtors’ ability to reach their interests in the plans rises to the level of asserting a sufficient degree of dominion and control over their funds in the plans, thus to negate the spendthrift character of these plans. Under his plan, Mr. Spears may reach his vested interests under the plan upon termination of employment, whether by quitting, death, retirement, disability or upon reaching the age of 55 after ten years of service with the company. The feature of this plan permitting Mr. Spears to reach his vested interests in the plan by quitting his employment, is certainly inconsistent with any recognized characteristics of a classical spendthrift trust under Florida law. Based on the foregoing, this Court is satisfied that the Avondale Industries plan is not a spendthrift trust, thus, the funds in the plan are property of the estate. In contrast, Mr. Braswell may not reach his interests in his plan with Miles, Inc., until age 55, death or disability. He is not able to manipulate his interests in the funds in any manner, therefore, this Court is satisfied that his plan qualifies as a spendthrift trust under Florida law. The same is true for Mr. Atzkatz, who may likewise reach his interests in the plan with US Air only" }, { "docid": "1909980", "title": "", "text": "bankruptcy petition, his interest in the pension plan was vested and the debtor could begin drawing the funds upon his retirement. The debtor is 55 years old and may possibly continue to work at Caterpillar Inc., until he reaches age 70. The debtor contends that the pension fund constitutes a valid spendthrift trust under Illinois law and is not property of the bankruptcy estate. Judge Lessen, also sitting in the Bankruptcy Court in the Central District of Illinois, in In re Dagnall, No. 86-71507, May 14, 1987, sided with those courts which have held that pension plans are not part of the bankruptcy estate only if they qualify under applicable state law as true spendthrifts trusts. Summarizing the nature of a spendthrift trust, Judge Lessen stated: “In general, a spendthrift trust is a trust created with the view of providing funds for the maintenance of another, and at the same time securing the beneficiary against his own improvidence or incapacity for self-protection. The beneficiary’s interest is neither transferable by the beneficiary nor leviable by creditors. Thus, in order to establish the [pension plan] as a spendthrift trust under Illinois law, the Debtor must show that she cannot alienate her interest in the trust res, and that she does not possess exclusive and effective control over termination or distribution. In re Sundeen, supra, 62 B.R. [619] at 620; Matter of Rolfe, 34 B.R. 159, 161 (Bankr.N.D.Ill.1983).” This Court finds that the Caterpillar Inc. pension plan would qualify under Illinois law as a spendthrift trust. The debtor has no present right to any benefit under the plan until he retires or is otherwise terminated by his employer. At that time he will receive only a monthly benefit as there is no option under the plan for electing a lump-sum payment. The debtor has made no contributions to the pension plan and exercises no dominion or control over the corpus of the fund. Based upon those facts, the debtor’s pension plan is excluded under Section 541(c)(2) from property of the estate. See written Order. ORDER For the reasons set forth in an Opinion" }, { "docid": "1184676", "title": "", "text": "ORDER ON OBJECTIONS TO CLAIMS OF EXEMPTIONS ALEXANDER L. PASKAY, Chief Judge. THESE are Chapter 7 liquidation cases, and the matters under consideration are Objections filed by the Trustee in each case to the Debtors’ claims that funds held in their respective ERISA qualified pension, employee stock ownership and/or profit-sharing plans are not property of the estate or, alternatively, are exempt from administration of the bankruptcy estate pursuant to Fla.Stat. § 222.21(2)(a), 11 U.S.C. § 522(b)(2)(A), or 11 U.S.C. § 522(d)(10)(E). The Court has considered the Objections, together with the Debtors’ responses and argument of counsel, and now finds and concludes as follows: IN RE SPEARS In the case of David and Kay Spears, Case No. 90-4506, the Debtors filed their Chapter 7 voluntary Petition for Relief on May 10, 1990. On their B-4 Schedule of Exemptions, the Debtors claimed Mrs. Spears’ interests in a profit-sharing plan and an employee stock ownership' plan (ESOP) with Delchamps, Inc., and Mr. Spears’ interest in an ESOP with Avondale Industries, Inc., as exempt pursuant to Fla. Stat. § 222.21(2)(a). The Avondale Industries, Inc., ESOP is funded by contributions made by the company only, which may vary from year to year in the total discretion of the company’s Board of Directors. The shares of the company are not currently traded on an established securities market. Mr. Spears is entitled to receive the entire stock held in the ESOP for his benefit upon death, retirement, disability, or by reaching age 55 after ten years of service with the company. If Mr. Spears terminates his employment, he is entitled to receive his vested interests in the ESOP. (Debtors’ Composite Exh. No. 1). There is no evidence before this Court regarding the value of Mr. Spears’ interest in the ESOP. The record reveals that Mrs. Spears’ interest is 100% vested in both plans with Delchamps for a total value of $6,488.50. (Debtors’ Composite Exh. No. 1). However, the terms of these plans are not part of this record. The Debtors now claim that in addition to being exempt pursuant to Fla.Stat. § 222.21(2)(a), the plans “are exempt" }, { "docid": "17938241", "title": "", "text": "7.05. It is evident that access to Debtor’s vested account in the ESOP is restricted in accordance with spendthrift trust standards and the participant has no control over the manner or timing of distribution despite the termination of his employment. Accordingly, Debtor’s interest in the ESOP is properly excluded under § 541(c)(2) as an interest in an enforceable spendthrift trust. However, Debtor’s interest in the Plan is properly included as property of the estate under § 541(a)(1). The determining factor is the Debtor’s termination of his employment which triggered his access to his vested account balance in the Plan. It is irrelevant to this analysis that the Debtor actually attempted to receive a lump sum distribution prior to the filing of his bankruptcy petition; it is the right to control the timing and manner of distribution, not the exercise of that right, that determines the characterization of the Debtor’s interest. II Turning to the exemption provision of § 522(d)(10)(E), it is necessary to reconcile the precedent of In re Clark, 711 F.2d 21 (3d Cir.1983) with recent Third Circuit cases, with regard to the scope and extent of this exemption. The Clark court held that a § 522(d)(10)(E) exemption is applicable only where a debtor has a present, as opposed to a future, right to receive the pension and retirement benefits at issue. Id. at 23. Under consideration in Clark were the proceeds of a Keogh retirement plan maintained for the benefit of the 43 year old debtor. The Court concluded that the debt- or had a future right to receive payments and therefore an exemption under § 522(d)(10)(E) was denied. It is essential to note the limitations of the court’s opinion in Clark. The court clearly states that the issue as to whether the fund was property of the bankruptcy estate was not before the court. Id. at 22. Therefore, the court in Clark did not take into consideration § 541(c)(2) and the spendthrift trust analysis applied in subsequent cases. The opinion in Clark is not comprehensive in scope when compared to later cases concerning Keogh and IRA retirement" }, { "docid": "17938239", "title": "", "text": "that Debtor’s request was not accompanied by his spouse’s written consent. The requirement of spousal consent was not raised as an impediment to distribution by either the Debt- or or McCoy Brothers prior to the hearing on the present motion and none of the testimony received at the hearing would indicate that the Debtor has been or will be unable to obtain his spouse’s consent. The Debtor’s testimony indicates that he withdrew his application for distribution under the Plan because of his decision to file for bankruptcy. The Debtor failed to list the Plan and ESOP funds on his schedules in any manner for fifteen months and, in fact, only filed an amended schedule B-4 declaring the interest as exempt several months after the Trustee’s Motion for Turnover of Property was filed. Debtor and his counsel were certainly aware that any claimed exemption should have been set forth in the original schedules and statement of affairs. Property exempted pursuant to § 522 initially enters the estate and is subsequently excluded. In re Maide, 103 B.R. 696, 698 (Bankr.W.D.Pa.1989), citing In re Goff, 706 F.2d 574, 579 (5th Cir.1983). Regardless of whether the debtor’s pension is determined later to be exemptible, its existence and amount must be disclosed. Turning to the provisions of the ESOP, there is no corresponding provision for a distribution of funds upon termination of employment prior to retirement. Under the trust separate accounts are maintained for all inactive participants. Section 8.07 entitled Distribution on Termination provides as follows: Upon termination of employment for any reason other than retirement, death, or total and permanent disability, the Trustee shall retain the vested account balance in trust for the named terminated Employee. This account and all accumulated interest shall be used to make a distribution to the Employee at the time he attains his Normal Retirement Date in a single sum in accordance with the provisions of Section 7.06. In the event the Employee dies before reaching his Normal Retirement Date, such account balance shall be distributed to the Beneficiaries of the Employee subject to the restrictions contained in Section" }, { "docid": "17938236", "title": "", "text": "such plans may not be retained by an individual debtor at the expense of his creditors. In determining the degree of debtor’s access to the funds, the analysis in each instance turns on both the plan provisions and the debtor’s employment status at the time of bankruptcy. A plan that restricts a participant’s access to termination, retirement, disability or death does meet the criteria for a valid spendthrift trust; however, when any of the specified events occurs (i.e. termination, retirement, disability or death) access to the debtor’s interest to the trust is triggered. Once access is triggered, the interest in the trust can no longer be properly excluded under § 541(c)(2) because the debtor now has a present right to payment; only an exemption under § 522(d)(10)(E) is available to the debtor. It is evident from a review of current cases that the ability of the debtor to access funds is the determining factor in the application of § 541(c)(2), because that ability negates the spendthrift nature of the trust. As previously noted, the determina tion as to whether the debtor’s interest in a retirement or stock ownership fund will be included in the debtor’s estate requires a case-by-case analysis and will turn on the application of the plan’s provisions to the individual debtor’s employment status. The provisions of the McCoy Brothers Plan and ESOP are not identical. The question before this Court is the effect the Debtor’s termination of employment had on the characterization of his interests held in the Plan and ESOP. Article IX of the Plan sets forth the terms for Distribution on Termination of Employment Prior to Retirement. Pursuant to paragraph 9.01, “Upon termination of employment of a Participant for reasons other than retirement, disability, or death, the terminated Participant shall be entitled to a distribution hereunder in accordance with the provisions of Section 9.07 only to the extent of the Participant’s vested interest.” In addition, Section 9.06 requires that upon termination of employment the participant shall be notified of the amount of vested equity in the Plan and the available distribution options. In accordance with" }, { "docid": "17938240", "title": "", "text": "696, 698 (Bankr.W.D.Pa.1989), citing In re Goff, 706 F.2d 574, 579 (5th Cir.1983). Regardless of whether the debtor’s pension is determined later to be exemptible, its existence and amount must be disclosed. Turning to the provisions of the ESOP, there is no corresponding provision for a distribution of funds upon termination of employment prior to retirement. Under the trust separate accounts are maintained for all inactive participants. Section 8.07 entitled Distribution on Termination provides as follows: Upon termination of employment for any reason other than retirement, death, or total and permanent disability, the Trustee shall retain the vested account balance in trust for the named terminated Employee. This account and all accumulated interest shall be used to make a distribution to the Employee at the time he attains his Normal Retirement Date in a single sum in accordance with the provisions of Section 7.06. In the event the Employee dies before reaching his Normal Retirement Date, such account balance shall be distributed to the Beneficiaries of the Employee subject to the restrictions contained in Section 7.05. It is evident that access to Debtor’s vested account in the ESOP is restricted in accordance with spendthrift trust standards and the participant has no control over the manner or timing of distribution despite the termination of his employment. Accordingly, Debtor’s interest in the ESOP is properly excluded under § 541(c)(2) as an interest in an enforceable spendthrift trust. However, Debtor’s interest in the Plan is properly included as property of the estate under § 541(a)(1). The determining factor is the Debtor’s termination of his employment which triggered his access to his vested account balance in the Plan. It is irrelevant to this analysis that the Debtor actually attempted to receive a lump sum distribution prior to the filing of his bankruptcy petition; it is the right to control the timing and manner of distribution, not the exercise of that right, that determines the characterization of the Debtor’s interest. II Turning to the exemption provision of § 522(d)(10)(E), it is necessary to reconcile the precedent of In re Clark, 711 F.2d 21 (3d Cir.1983)" }, { "docid": "18580738", "title": "", "text": "7 debtor’s interest in an employer-financed stock bonus and profit-sharing retirement trust under ERISA. The plan did not allow withdrawals, except upon the employee’s death, termination, disability or upon the termination of the plan. All deposits to the trust were made by the employer, and the plan involved no active participation by the employee. He had no control over his benefits. Based on these characteristics, the court in Maine held that the trust benefits were excludable from the estate as a spendthrift trust. In the trust before this court, however, the beneficiary cannot withdraw funds, deposit funds, borrow against his interest, or manage the deposits in any way. These characteristics encourage the finding that the plan creates a spendthrift trust under state law. The debtor is the beneficiary for whom a trust has been designated by the employer-settlor, who has attempted to protect the debtor from his own improvidence by retaining control over the assets. See In re Goff, supra. As a result of its being analogous to a state law spendthrift trust, the plan is excluded from the estate by section 541(c)(2) of the Bankruptcy Code. 42 B.R. at 602. This court takes particular note that the trust provisions in Kwaak allowing for withdrawal upon termination did not keep the trust from being a “spendthrift trust” in Maine. This court can find no material distinctions between spendthrift trusts in Maine and spendthrift trusts in Illinois. The bankruptcy court in the instant case relied upon the holding of the Eighth Circuit in In re Graham, 726 F.2d 1268 (1984). This court realizes that the language of the Graham plan is similar to that of ASMP in that both plans include a provision that allows for distribution of benefits upon termination. The clause in Graham stated: Upon termination of a participant’s employment prior to attaining Normal Retirement Age (for any reason other than death or disability), the Advisory Committee, in its sole discretion, may direct the Trustee to pay the Participant his nonforfeitable Accrued Benefit. In re Graham, 24 B.R. 305, 307 (1982), aff’d, 726 F.2d 1268 (8th Cir.1984). The ASMP" } ]

[ { "docid": "22822637", "title": "", "text": "conviction for intentional or knowing serious bodily injury to a child for failing to remove her son from the presence of her abusive boyfriend and for the failure to provide medical care); Babers v. State, 834 S.W.2d 467 (Tex.App.-Houston [14th Dist.] 1992, no pet.) (involving a conviction for intentional or knowing injury to a child for failing to provide proper medical care for a burned child). As these examples illustrate, in many cases the offense'of injury to a child does not involve the substantial likelihood of an intentional use of force. Thus, the offense is not, “by its nature,” a crime of violence under 18 U.S.C. § 16(b). See Velazquez-Overa, 100 F.3d at 420-21. Accordingly, the district court’s sixteen-level enhancement of Gracia-Cantu’s offense level constitutes clear and obvious error. Absent a prior conviction for an aggravated felony, Gracia-Cantu’s total offense level would have been ten (a base offense level of eight, a four-level increase for a prior “nonaggravated” felony conviction, and a two-level reduction for acceptance of responsibility)'. U.S. Sentenoing Guidelines Manual §§ 2L1.2(a), (b)(1)(B) & 3El.l(a) (2000). An offense level of ten corresponds to an imprisonment range of twenty-one to twenty-seven months. Id. ch. 5, pt. A (sentencing table). In eon-trast, the offense level of twenty-one assigned to Gracia-Cantü corresponds to an imprisonment range of seventy to eighty-seven months, id., and the district court sentenced Gracia-Cantu to seventy months of imprisonment. The dramatic ■ increase in the recommended imprisonment range and in Gracia-Cantu’s actual term of imprisonment affected his substantial rights. See United States v. Williamson, 183 F.3d 458, 464 (5th Cir.1999) (concluding that a two-fold increase in prison time affected the defendant’s substantial rights). Such a sentencing error also seriously affects the fairness, integrity, or public reputation of the judicial proceedings. See United States v. Aderholt, 87 F.3d 740, 744 (5th Cir.1996) (finding that “the fairness and integrity of this judicial proceeding were seriously affected” by sentencing calculation errors). Thus, the district court’s sixteen-level enhancement of Gracia-Cantu’s offense level constituted plain error. III. CONCLUSION For the foregoing reasons, we conclude that the district court’s sixteen-level enhancement of Gracia-Cantu’s" } ]

[ { "docid": "5158686", "title": "", "text": "BENAVIDES, Circuit Judge: Appellant Juan Guerrero-Robledo pleaded guilty to one count of being found in the United States without the consent of the Attorney General after having been deported in violation of 8 U.S.C. § 1326. Guerrero appeals his sentence, raising a Sixth Amendment claim and a challenge to the district court’s application of the Sentencing Guidelines. We AFFIRM. At sentencing, pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii), the district court increased Guerrero’s offense level by sixteen based on his prior South Carolina conviction for assault and battery of a high and aggravated nature (“ABHAN”). The district court sentenced Guerrero to 58 months of imprisonment, a three-year term of supervised release, and the $100 mandatory special assessment. He now-challenges the use of the prior conviction, alleging that: (1) the government had the burden to show that he had validly waived his right to counsel during the South Carolina proceedings; and (2) ABHAN does not qualify as a crime of violence for purposes of § 2L1.2(b)(1)(A)(ii). I. WAIVER OF COUNSEL Guerrero contends that the district court erred in increasing his offense level based on his prior South Carolina conviction for ABHAN because the government failed to meet its burden of proving that he validly waived his right to counsel when pleading guilty to ABHAN. Guerrero admits that he failed to object in the district court and that this claim is thus reviewed for plain error. This Court finds “plain error only if: (1) there was an error; (2) the error was clear and obvious; and (3) the error affected the defendant’s substantial rights.” United States v. Gracia-Cantu, 302 F.3d 308, 310 (5th Cir.2002). If Guerrero proves these three elements, we have the “discretion to correct the error only if it seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. (citation and internal quotation marks omitted). The Presentence Report (PSR) contains a record of Guerrero’s prior state conviction. The state record provides that Guerrero proceeded pro se but is silent with respect to his waiver of the right to counsel. The PSR noted that, under South Carolina law, all defendants are" }, { "docid": "22359422", "title": "", "text": "Bureau of Prisons at time of the offense and he admitted to being a public officer. Baymon did not object in the district court that he was not a “public official.” Therefore, we apply the plain error standard to his sufficiency challenge, as the issue is raised for the first time on appeal. United States v. Marek, 238 F.3d 310, 315 (5th Cir.2001) (en banc), cert. denied, 534 U.S. 813, 122 S.Ct. 37, 151 L.Ed.2d 11 (2001). Plain error requires Baymon to show “(1) an error; (2) that is clear or plain; (3) that affects [his] substantial rights; and (4) that seriously affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Vasquez, 216 F.3d 456, 459 (5th Cir.2000). While there is no controlling authority on point indicating Baymon is clearly not a “public official” and therefore could establish plain error, this Court has nonetheless stated in Spruill that the fact that the particular factual and legal scenario presented does not appear to have been addressed in any other reported opinion does not preclude an asserted error from being sufficiently plain to authorize reversal. 292 F.3d at 215 n. 10. Therefore, we must address who is a “public official” and find error only if Baymon is plainly not a “public official.” Section 201 defines the term “public official” to include “an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof, ... in any official function, under or by authority of any such department, agency, or branch of Government.” 18 U.S.C. § 201(a)(1). The federal bribery statute “has been accurately characterized as a comprehensive statute applicable to all persons performing activities for or on behalf of the United States, whatever the form of delegation of authority.” Dixson v. United States, 465 U.S. 482, 496, 104 S.Ct. 1172, 79 L.Ed.2d 458 (1984) (internal citations and quotations omitted). In United States v. Thomas, this Court held that a privately employed guard whose employer contracted with the INS to house INS detainees was a “public official” under" }, { "docid": "16406238", "title": "", "text": "error and whether that error was plain. Villegas, 404 F.3d at 358-62, 2005 WL 627963, at *2-5. In resolving his claim that the district court erred by misapplying § 2L1.2(b)(l)(A)(ii), we review the district court’s interpretation and application of the Guidelines de novo. Id. Under U.S.S.G. § 2L1.2(b)(l)(A)(ii), an alien convicted of unlawfully re-entering, or being unlawfully present in, the United States after previously being deported, faces a sixteen-level enhancement under the Sentencing Guidelines if, prior to his deportation, he had “a conviction for a felony that is ... a crime of violence .... ” The term “crime of violence” includes “murder, manslaughter, kidnaping, aggravated assault, forcible sex offenses (including sexual abuse of a minor), robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling.” U.S.S.G. § 2L1.2, Application Note 1(B)(II). Additionally, it includes any offense under “federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.” Id. Under the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), a district court looks to the elements of a prior offense, rather than to the facts underlying the conviction, when classifying a prior offense for sentence enhancement purposes. See also United States v. Gracia-Cantu, 302 F.3d 308, 309 (5th Cir.2002). In United States v. Calderon-Pena, 383 F.3d 254, 257 (5th Cir.2004), this court addressed exactly what a district court should consider when determining if a “crime of violence” under § 2L1.2 was committed, writing: Although the actual conduct described in the indictments could be construed to involve the use of physical force against the person of another, that is irrelevant .... The inquiry [when determining if a “crime of violence” was committed] looks to the elements of the crime, not to the defendant’s actual conduct in committing it. This rule springs directly from the language of the “crime of violence” definition itself, which states that a “crime of violence” is an offense that “has as an element” the use of force. The elements" }, { "docid": "23370805", "title": "", "text": "an upward departure. In this case, the district court ran the sentences concurrently and sentenced Williams at the bottom of what it believed to be the correct guidelines range; the district court made no findings in its written order of judgment supporting an upward departure; and there is no indication that the district court would have upwardly departed had it sentenced Williams under the correct guidelines range. Indeed, the district judge noted at sentencing that “a guideline sentence is appropriate and reasonable.” This case is similar to United States v. Vasquez-Zamora, in which this court remanded for resentencing after the Apprendi error that occurred when the district court sentenced a defendant to concurrent 65-month terms of imprisonment despite a statutory maximum imprisonment term of 60 months. 253 F.3d 211, 214 (5th Cir.2001). The government argued that the district court could have run the terms consecutively to reach the same 65-month sentence, but we rejected that argument and remanded to permit the district court to fashion an appropriate sentence in the first instance. Id.; see also United States v. Dentler, 492 F.3d 306, 313-14 (5th Cir.2007) (rejecting argument that district court’s numerous comments at sentencing suggesting that it sought to impose stiffest penalty possible demonstrated that sentencing error did not substantially prejudice defendant’s rights). There is a reasonable probability that Williams’s sentence would have been different absent the error, and accordingly her substantial rights have been prejudiced. Garcia-Quintanilla, 574 F.3d at 303-04. Finally, the parties disagree as to whether we should find that the plain error affected the fairness, integrity, or public reputation of judicial proceedings and exercise our discretion to remedy the error. We have taken “a generally permissive approach” to both the prejudice and fairness prongs of plain error review. United States v. Ellis, 564 F.3d 370, 378 n. 44 (5th Cir.2009). We have generally found that sentencing errors resulting in terms of imprisonment that exceed the correct guidelines range do affect the fairness, integrity, or public reputation of judicial proceedings. See, e.g., United States v. Aderholt, 87 F.3d 740, 744 (5th Cir.1996). In this case, the sentence exceeds" }, { "docid": "23175552", "title": "", "text": "EMILIO M. GARZA, Circuit Judge: In response to the Petition for Panel Rehearing filed by the Government, and having duly considered the response, we GRANT the petition and withdraw the pri- or panel opinion, 516 F.3d 357, in its entirety and substitute the following: The defendant Juan Gonzalez-Terrazas appeals his sentence of 57 months imprisonment based on his guilty-plea conviction for unlawful reentry of an alien after removal in violation of 8 U.S.C. § 1326. Gonzalez argues that the district court committed plain error in applying a 16-level sentencing enhancement pursuant to United States Sentencing Guidelines (U.S.S.G.) § 2L1.2(b)(l)(A)(ii) for Gonzalez’s alleged commission of a “crime of violence” based on his prior conviction under California law for residential burglary, CalPenal Code § 459 (West 1999). For the following reasons, we VACATE the sentence and REMAND for RESEN-TENCING. Gonzalez was removed from the United States in February 2005. In 2006, he was found in El Paso, Texas. He did not have permission to reenter the United States. Gonzalez was charged with and pleaded guilty to one count of illegal reentry following removal in violation of 8 U.S.C. § 1326. Prior to his removal, Gonzalez was convicted of residential burglary in violation of California Penal Code § 459. Because of that conviction, Gonzalez’s pre-sentence report (PSR) recommended a 16-level crime-of-violence enhancement under U.S.S.G. § 2L1.2(b)(l)(A). This enhancement resulted in a guideline range of 57 months to 71 months imprisonment. The district court adopted the recommendation and sentenced Gonzalez to 57 months imprisonment. Gonzalez appeals. Gonzalez argues that the district court plainly erred in applying the 16-level enhancement because, under this court’s decision in United States v. Ortega-Gonzaga, 490 F.3d 393 (5th Cir.2007), a conviction under California Penal Code § 459 for residential burglary does not constitute a crime of violence for the purposes of U.S.S.G. § 2L1.2(b)(l)(A). We review the district court’s application and interpretation of the sentencing guidelines de novo and its factual findings for clear error. United States v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir.2008); United States v. Villegas, 404 F.3d 355, 358 (5th Cir.2005). As Gonzalez concedes, because" }, { "docid": "17680764", "title": "", "text": "looking for any to indicate a cause and effect relation between the omission of the information and the bank’s decision to authorize the loan. There is none. As we have noted, plain error review requires satisfaction of three elements. First, there must be error and it must be plain. Peltier, 505 F.3d at 392. It is plain that an “adequate evidentiary basis” requires at least some evidence supporting the conclusions reached in the PSR. None exists on this record. The little evidence that does exist suggests that the funds were not obtained “as a result of’ Sandlin’s offense. There was error, and it is plain. Additionally, plain error must also affect a substantial right. Id. Sandlin’s sentence was enhanced seventeen levels and increased from a potential zero to six month term to thirty-six months’ imprisonment. An increase of this magnitude impacts Sandlin’s substantial rights. See United States v. Gracia-Cantu, 302 F.3d 308, 313 (5th Cir.2002) (finding that a sixteen level enhancement affected defendant’s substantial rights). Our final, over arching concern on plain error is whether the error “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Peltier, 505 F.3d at 392. We conclude that the dramatic increase in sentence satisfies the fourth prong by affecting the fairness of this proceeding. We therefore exercise our discretion to correct the unobjected-to error. Gracia-Cantu, 302 F.3d at 313. We therefore reverse and remand for resentencing. At a new sentencing hearing, the Government may offer evidence not presented previously to justify the sentence, and Sandlin may offer rebuttal. United States v. Kinder, 980 F.2d 961, 963 (5th Cir.1992). We have held that when a defendant succeeds in having a sentence vacated, on remand “all new matter relevant to the issue appealed, reversed, and remanded, may be taken into consideration by the resentencing court.” United States v. Marmolejo, 139 F.3d 528, 530 (5th Cir.1998). A district court should gather “the relevant facts and evidence on the specific and particular issues heard by the appeals court and remanded for resen-tencing.” Id. C. Outrageous Government Conduct For the first time on appeal, Sandlin suggests that" }, { "docid": "22822639", "title": "", "text": "offense level constituted plain error. Accordingly, we VACATE Gracia-Cantu’s sentence and REMAND for resentencing in accordance with this opinion. . Gracia-Cantu was deported on October 9, 1998 and on April 4, 2001. He did not have permission from the Attorney General to reenter the United States. Section 1326 reads in relevant part: (a) Subject to subsection (b) of this section, any alien who— il) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter (2) enters, attempts to enter, or is at any time found in, the United States, unless ... the Attorney General has expressly consented to such alien’s reapplying for admission ... shall be fined under Title 18, or imprisoned not more than 2 years, or both. (b) Notwithstanding subsection (a) of this section, in the case of any alien described in such subsection— (2) whose removal was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined under such Title, imprisoned not more than 20 years, or both. 8 U.S.C. § 1326. . Because Gracia-Cantu was sentenced on August 15, 2001, before the effective date of the 2001 version of the Sentencing Guidelines, the 2000 version applies. See United States v. Hill, 258 F.3d 355, 356 n. 1 (5th Cir.2001). . After an objection by Gracia-Cantu, the district court declined to adopt the PSR's recommended criminal history category of VI. The district court determined that a criminal history category of V, rather than the recommended category of VI, was appropriate. Gracia-Cantu’s criminal history category is not an issue in this appeal. . Compare United States v. Charles, 301 F.3d 309, 312 (5th Cir.2002) (holding that “sentences involving possession of a firearm by a felon, which also involve a prior conviction for an alleged 'crime of violence,' are to have the 'crime of violence' determination made only in accordance with the definition in § 4B 1.2(a) [of the Sentencing Guidelines]” rather than in accordance with 18 U.S.C. § 16) (internal citation omitted). . In its brief, the" }, { "docid": "23175553", "title": "", "text": "count of illegal reentry following removal in violation of 8 U.S.C. § 1326. Prior to his removal, Gonzalez was convicted of residential burglary in violation of California Penal Code § 459. Because of that conviction, Gonzalez’s pre-sentence report (PSR) recommended a 16-level crime-of-violence enhancement under U.S.S.G. § 2L1.2(b)(l)(A). This enhancement resulted in a guideline range of 57 months to 71 months imprisonment. The district court adopted the recommendation and sentenced Gonzalez to 57 months imprisonment. Gonzalez appeals. Gonzalez argues that the district court plainly erred in applying the 16-level enhancement because, under this court’s decision in United States v. Ortega-Gonzaga, 490 F.3d 393 (5th Cir.2007), a conviction under California Penal Code § 459 for residential burglary does not constitute a crime of violence for the purposes of U.S.S.G. § 2L1.2(b)(l)(A). We review the district court’s application and interpretation of the sentencing guidelines de novo and its factual findings for clear error. United States v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir.2008); United States v. Villegas, 404 F.3d 355, 358 (5th Cir.2005). As Gonzalez concedes, because Gonzalez failed to object to the district court’s imposition of the 16-level crime-of-violence enhancement, we review this issue for plain error. See United States v. Garza-Lopez, 410 F.3d 268, 272 (5th Cir.2005). Plain error occurs when: “(1) there was an error; (2) the error was clear and obvious; and (3) the error affected the defendant’s substantial rights.” Villegas, 404 F.3d at 358 (citing United States v. Olano, 507 U.S. 725, 732-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). If each of these conditions is satisfied, we may exercise our discretion to correct the error only if “the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Garza-Lopez, 410 F.3d at 272 (internal quotation marks omitted). Applying the plain error analysis, we must first determine whether there was an error. Section 2L1.2(b)(l)(A)(ii) provides for a 16-level sentencing enhancement for a defendant deported after committing — among other things — a “crime of violence.” The Application Notes to § 2L1.2 define “crime of violence” to include “burglary of a dwelling” or any felony that" }, { "docid": "16406243", "title": "", "text": "18.2-279 was for a “crime of violence.” See U.S.S.G. 2L1.2; Calderon-Pena, 383 F.3d at 257. The second prong of the plain-error test is also met because this court has consistently held that when a district court errs in concluding that a defendant was convicted of a “crime of violence,” the error is plain. See, e.g., United States v. Insaulgarat, 378 F.3d 456, 471 (5th Cir. 2004); Gracia-Cantu, 302 F.3d at 313; United States v. Aguilar-Delgado, 120 Fed.Appx. 522 (5th Cir.2004) (unpublished); United States v. Lopez-Hernandez, 112 Fed.Appx. 984, 985 (5th Cir.2004) (per curiam) (unpublished). With respect to the third and fourth prongs of the plain-error test, we must determine “whether the defendant can show a reasonable probability that, but for the district court’s misapplication of the Guidelines, [the defendant] would have received a lesser sentence.” Villegas, 404 F.3d at 364, 2005 WL 627963, at *7. In Villegas, the court stated that absent the enhancement, the defendant’s “sentencing range would have been reduced from between twenty-one and twenty-seven months to between ten and sixteen months.” Id. at 364, 2005 WL 627963, at *7. It then held that “[bjecause these two sentencing ranges do not overlap, the district court’s error necessarily increased [the defendant’s] sentence and thus affected his substantial rights.” Id.; see also Insaulgarat, 378 F.3d at 468 n. 17 (holding that because the district court’s error resulted in the imposition of a sen-fence substantially greater than the maximum otherwise permitted under the Sentencing Guidelines, the error affected the defendant’s substantial rights and the fairness of the judicial proceedings); Gracia-Cantu, 302 F.3d at 312 (same). In the present case, without the sixteen-level enhancement for committing a “crime of violence,” Alfaro at most would have been subject to an eight-level enhancement under § 2L1.2(b)(l)(C) for being convicted of an “aggravated felony.” Accordingly, he would have faced a sentencing range of, at most, fifteen to twenty-one months, far less than the fifty-month sentence he received. Thus, the district court’s error in the present case resulted in the imposition of a sentence that was substantially greater than would otherwise have been permitted under the" }, { "docid": "23112030", "title": "", "text": "Texas, 84 F.3d 720, 722 (5th Cir.1996). Therefore, his constitutional challenge to § 1326(b) fails, and we affirm his conviction. B. Bonilla also argues that the district court improperly enhanced his sentence under U.S.S.G. § 2L1.2(b)(l)(A)(ii) by classifying his 2000 California conviction for sexual battery as a crime of violence. Because he failed to raise this issue in the district court, we review for plain error. The Government urges us to refrain from addressing this issue on the ground that Bonilla waived any objection to his crime-of-violence enhancement at sentencing. However, the Government did not raise this waiver argument in its brief. Rather, it addressed the merits of Bonil-la’s enhancement under a plain error standard of review. After the parties filed their briefs, we decided United States v. Calderon-Pena, 383 F.3d 254 (5th Cir.2004), which held that a defendant’s prior Texas conviction of child endangerment was not a crime of violence for sentence-enhancement purposes because it did not require the use of force as an element. Therefore, we asked the parties for supplemental briefing about, among other things, the impact of Calderon-Pena on this case. In response to that question, the Government asserted that “Calderon-Pena is inapplicable here because Bonilla waived his objection to the 16-level sentencing enhancement” in the district court. The Government then dedicated two pages of its nine-page letter brief to its new argument about waiver. We reject the Government’s waiver argument for two reasons: it is unresponsive to our questions on supplemental briefing, and it was untimely. Just as we will not entertain issues first raised by an appellant in his reply brief, United States v. Brown, 305 F.3d 304, 307 n. 4 (5th Cir.2002), we will not consider new arguments first raised by an appellee in supplemental briefing on unrelated issues. Accordingly, the Government has waived its waiver argument, and we proceed with our review of Bonilla’s crime-of-violence enhancement. Section 2L1.2(b)(l)(A)(ii) of the Guidelines provides for a sixteen-level enhancement of a defendant’s sentence if the defendant was previously deported or remained in the United States after “a conviction for a felony that is ... a" }, { "docid": "22412804", "title": "", "text": "and our jurisprudence construing section 4B1.2. Therefore it was plain error ....”); United States v. Gracia-Cantu, 302 F.3d 308, 312-13 (5th Cir.2002); United States v. Dixon, 265 Fed.Appx. 383, 385-86 (5th Cir.2008); United States v. Sanchez-Torres, 136 Fed.Appx. 644, 647-48 (5th Cir.2005); United States v. Lopez-Hernandez, 112 Fed.Appx. 984, 985 (5th Cir.2004); United States v. Aguilar-Delgado, 120 Fed.Appx. 522, 523-24 (5th Cir.2004). . See United States v. Sanchez-Garcia, 307 Fed.Appx. 829, 831, 2009 WL 139591, *2 (5th Cir.2009) (“Because this Circuit has not rule on this interpretation of § 4A1.2(k), and because there is a circuit split on the issue, we cannot hold that the district court plainly erred ---- In light of this disagreement in the circuits, the district court did not plainly err ....\"). . - U.S. -, 129 S.Ct. 1423, -, 173 L.Ed.2d 266, No. 07-9712, 2009 WL 763354, *3 (U.S. March 25, 2009). . A survey of cases indicates some variation in treatment of plain error review, but with a generally permissive approach to the third and fourth prongs, and especially where a significantly different Guidelines range was erroneously advised. See, e.g., Dentler, 492 F.3d at 314 (quoting broad language concerning remand on sentencing error, but proceeding to analyze for prejudice, which it found); Alfaro, 408 F.3d at 209; United States v. Pennell, 409 F.3d 240, 245-46 (5th Cir.2005) (noting clear showing of prejudice in this case, but leaving future cases open); United States v. Villegas, 404 F.3d 355, 364-65 (5th Cir.2005) (finding prejudice where erroneous Guidelines range and correct range did not overlap); Insaulgarat, 378 F.3d at 468 n. 17 (same); United States v. Gracia-Cantu, 302 F.3d 308, 313 (5th Cir.2002) (same); United States v. Aderholt, 87 F.3d 740, 744 (5th Cir.1996) (as to third prong, finding prejudice \"because, absent an [erroneous] upward departure, [the defendant] would have received a lesser sentence”; as to fourth prong, noting \"permissive” nature of plain error review but choosing to vacate and remand); United States v. Frank, 46 F.3d 402, 405 (5th Cir.1995) (\"Because Franks erroneously and mistakenly received a substantially longer sentence under the guidelines than he should" }, { "docid": "22763739", "title": "", "text": "W.EUGENE DAVIS, Circuit Judge: In this appeal, we consider whether the district court correctly enhanced appellant’s sentence based on its conclusion that defendant’s prior Texas conviction for second degree burglary of a habitation qualified as a crime of violence under U.S.S.G. § 2L1.1. We conclude that this conviction is equivalent to burglary of a dwelling, an enumerated offense under that guideline, and agree with the district court that the enhancement was proper. I. Garcia-Mendez was charged in a single-count indictment with illegal presence in the United States after deportation, in violation of 8 U.S.C. § 1326. He pled guilty under a plea agreement in which the government agreed to recommend the low end of the guideline range, a two-level decrease for acceptance of responsibility and an additional two-level decrease for early disposition. The Presentence Report (“PSR”) recommended a 16-level sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) due to Garcia-Mendez’s conviction of a “crime of violence” felony. Garcia-Mendez objected initially to the enhancement on the ground he had not been convicted of burglary of a habitation, but rather, this charge had been dropped down to a lesser offense which would not qualify as a crime of violence. When that objection could not be supported factually, he objected that the 16-level enhancement was excessive. The district court denied the objection. With the promised reductions for acceptance of responsibility and early disposition, Garcia-Mendez’s total offense level was 19. With a criminal history category of II, the guideline range was 33 to 51 months. The district court sentenced Gar-eia-Mendez to 33 months imprisonment. Garcia-Mendez appeals. II. The main issue in this appeal is whether Garcia-Mendez’s prior conviction is a “crime of violence” supporting the 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). We ordinarily review this determination de novo. United States v. Calderon-Pena, 383 F.3d 254, 256 (5th Cir.2004)(en banc). However, because Garcia-Mendez did not object to the enhancement on the ground raised in this appeal, we review for plain error. United States v. Gracia-Cantu, 302 F.3d 308, 310 (5th Cir.2002). This court “find[s] plain error only if: (1) there was error; (2) the error was clear" }, { "docid": "23370806", "title": "", "text": "United States v. Dentler, 492 F.3d 306, 313-14 (5th Cir.2007) (rejecting argument that district court’s numerous comments at sentencing suggesting that it sought to impose stiffest penalty possible demonstrated that sentencing error did not substantially prejudice defendant’s rights). There is a reasonable probability that Williams’s sentence would have been different absent the error, and accordingly her substantial rights have been prejudiced. Garcia-Quintanilla, 574 F.3d at 303-04. Finally, the parties disagree as to whether we should find that the plain error affected the fairness, integrity, or public reputation of judicial proceedings and exercise our discretion to remedy the error. We have taken “a generally permissive approach” to both the prejudice and fairness prongs of plain error review. United States v. Ellis, 564 F.3d 370, 378 n. 44 (5th Cir.2009). We have generally found that sentencing errors resulting in terms of imprisonment that exceed the correct guidelines range do affect the fairness, integrity, or public reputation of judicial proceedings. See, e.g., United States v. Aderholt, 87 F.3d 740, 744 (5th Cir.1996). In this case, the sentence exceeds the statutory maximum by nine months, a 75 percent increase. Given this excess over the statutory maximum and the permissiveness with which the court has construed the fairness prong, we hold that the sentence in this case affects the fairness, integrity, or public reputation of judicial proceedings. Accordingly, we vacate Williams’s sentence and remand to the district court for resentencing. We express no opinion as to the appropriate sentence. CONCLUSION The judgment of the district court is AFFIRMED as to appellant’s conviction. However, in light of the foregoing we VACATE her sentence and REMAND to the district court for resentencing. . At trial, Williams’s physician confirmed the diagnosis. . In 1982, when 18 years old, Williams pleaded no contest to manslaughter charges in the death of her 15-month-old child. She also had a 1982 conviction for forgery and a 1984 conviction for escaping from custody. . Williams's interpretation of § 111 as creating three assault offenses does not mean that the Fifth Circuit requires assaultive conduct for all convictions under § 111(a)(1). In both Williams" }, { "docid": "22822629", "title": "", "text": "sixteen levels because of a prior Texas felony conviction for injury to a child, and a decrease of three levels because of Gra-cia-Cantu’s acceptance of responsibility, for a total offense level of twenty-one. The district court adopted most of the findings of the PSR, including the characterization of Gracia-Cantu’s state felony conviction for injury to a child as an aggravated felony, resulting in an offense level of twenty-one. The district court sentenced Gracia-Cantu to seventy months of imprisonment, two years of supervised release, and a mandatory special assessment of $100. This term of imprisonment is within the range applicable to an offense level of twenty-one and a criminal history category of V. U.S. Sentencing Guidelines Manual ch. 5, pt. A (sentencing table) (2000). II. DISCUSSION Gracia-Cantu appeals his sentence on the ground that the district court improperly classified his felony conviction for injury to a child as an aggravated felony and thus improperly enhanced his sentence. Because Gracia-Cantu raises this argument for the first time on appeal, we review the district court’s sentence enhancement for plain error.* United States v. Calverley, 37 F.3d 160, 162 (5th Cir.1994) (en banc). We find plain error only if: (1) there was an error; (2) the error was clear and obvious; and (3) the error affected the defendant’s substantial rights. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). When these elements are present, we may exercise our discretion to correct the error only if it “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal citations and quotations omitted) (alteration in original). Under the sentencing guidelines applicable to a conviction for illegal re-entry pursuant to § 1326, a sixteen-level increase in offense level applies if the defendant’s pri- or deportation followed a conviction for an “aggravated felony.” U.S. Sentenoing Guidelines Manual § 2L1.2(b)(l)(A). The commentary on § 2L1.2 of the sentencing guidelines adopts the definition of “aggra vated felony” in 8 U.S.C. § 1101(a)(43) (2000). Under that definition, “aggravated felony” includes “a crime of violence (as defined in section 16 of Title 18, but" }, { "docid": "22412805", "title": "", "text": "where a significantly different Guidelines range was erroneously advised. See, e.g., Dentler, 492 F.3d at 314 (quoting broad language concerning remand on sentencing error, but proceeding to analyze for prejudice, which it found); Alfaro, 408 F.3d at 209; United States v. Pennell, 409 F.3d 240, 245-46 (5th Cir.2005) (noting clear showing of prejudice in this case, but leaving future cases open); United States v. Villegas, 404 F.3d 355, 364-65 (5th Cir.2005) (finding prejudice where erroneous Guidelines range and correct range did not overlap); Insaulgarat, 378 F.3d at 468 n. 17 (same); United States v. Gracia-Cantu, 302 F.3d 308, 313 (5th Cir.2002) (same); United States v. Aderholt, 87 F.3d 740, 744 (5th Cir.1996) (as to third prong, finding prejudice \"because, absent an [erroneous] upward departure, [the defendant] would have received a lesser sentence”; as to fourth prong, noting \"permissive” nature of plain error review but choosing to vacate and remand); United States v. Frank, 46 F.3d 402, 405 (5th Cir.1995) (\"Because Franks erroneously and mistakenly received a substantially longer sentence under the guidelines than he should have received, the fairness and integrity of the judicial proceeding was seriously affected.”); United States v. Brownlow, 87 Fed.Appx. 337, 338-39 (5th Cir.2004) (seemingly assuming prejudice; declining to \"speculate” as to whether lower sentence would in fact have been imposed); United States v. Colindres, 98 Fed.Appx. 347, 349 (5th Cir.2004) (overturning where sentence imposed was greater than highest sentence advised under correct Guidelines sentence); United States v. Vivar-Acosta, 112 Fed.Appx. 328, 329 (5th Cir.2004) (same); United States v. Luna-Montoya, 80 Fed.Appx. 334, 337-38 (5th Cir.2003). Cf. United States v. Leonard, 157 F.3d 343, 346 (5th Cir.1998) (no prejudice); United States v. Echavarria, 138 Fed.Appx. 678, 679-80 (5th Cir.2005) (finding no prejudice)." }, { "docid": "16406245", "title": "", "text": "Sentencing Guidelines, thereby affecting Alfaro’s substantial rights and the fairness of the judicial proceedings. See, e.g., Villegas, 404 F.3d at 364, 2005 WL 627963, at *7; Insaulgamt, 378 F.3d at 468 n. 17; Gracia-Cantu, 302 F.3d at 312. Accordingly, we conclude that the district court committed plain error when it imposed the sixteen-level sentence enhancement pursuant to U.S.S.G. § 2L1.2(b)(l)(A)(ii), and we vacate Alfaro’s sentence and remand for resentencing. See Villegas, 404 F.3d at 364, 2005 WL 627963, at *7. B. Alfaro’s Criminal History Category With respect to Alfaro’s argument that the district court erred in assigning a criminal history point under U.S.S.G. § 4A1.2(c)(l) for his Texas state misdemeanor conviction for evading arrest, we note that both Alfaro and the government agree that the district court erred. As the government admits, under § 4A1.2(c)(l), a criminal history point should have been assigned to Alfaro’s prior conviction for evading arrest only if the conviction resulted in a sentence of probation for a year or more or imprisonment for thirty days or more. See U.S.S.G. § 4A1.2(c)(l); United States v. Moore, 997 F.2d 30, 33 (5th Cir.1993). Alfaro only received a sentence of ten days imprisonment for his evading arrest conviction. Thus, the district court erred in assigning a criminal history point for this offense. Because we vacate Alfa-ro’s sentence based on the sixteen-level enhancement, however, we need not address whether the court’s erroneous imposition of the criminal history point is plain error requiring reversal. C. The Constitutionality of 8 U.S.C. § 1326(b) Finally, Alfaro argues that the “felony” and “aggravated felony” provisions of 8 U.S.C. §§ 1326(b)(1) and (2) are unconstitutional. While Alfaro notes that this argument appears to be foreclosed by the Supreme' Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), he contends that Almendarez-Torres was wrongly decided. In support of his argument, he claims that Justice Thomas, who provided a critical fifth vote in Almendarez-Torres, now appears to have repudiated his position in Almendarez-Torres. Thus, Alfaro concludes that five members of the Supreme Court now appear to be" }, { "docid": "22763740", "title": "", "text": "rather, this charge had been dropped down to a lesser offense which would not qualify as a crime of violence. When that objection could not be supported factually, he objected that the 16-level enhancement was excessive. The district court denied the objection. With the promised reductions for acceptance of responsibility and early disposition, Garcia-Mendez’s total offense level was 19. With a criminal history category of II, the guideline range was 33 to 51 months. The district court sentenced Gar-eia-Mendez to 33 months imprisonment. Garcia-Mendez appeals. II. The main issue in this appeal is whether Garcia-Mendez’s prior conviction is a “crime of violence” supporting the 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). We ordinarily review this determination de novo. United States v. Calderon-Pena, 383 F.3d 254, 256 (5th Cir.2004)(en banc). However, because Garcia-Mendez did not object to the enhancement on the ground raised in this appeal, we review for plain error. United States v. Gracia-Cantu, 302 F.3d 308, 310 (5th Cir.2002). This court “find[s] plain error only if: (1) there was error; (2) the error was clear and obvious; and (3) the error affected the defendant’s substantial rights. When these elements are present, [this Court] may exercise [its] discretion to correct the error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (Internal citations and quotation marks omitted). Section 2L1.2(b)(1)(A)(ii) provides for a 16-level enhancement to a defendant’s offense level when a defendant was previously deported after a conviction for a crime of violence. A conviction can qualify as a “crime of violence” under this provision in one of two ways. First, it qualifies if the conviction is one of the offenses enumerated as crimes of violence. Second, if the conviction is not for one of the enumerated offenses, it still qualifies if it is “any offense under federal, state or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 2L1.2, comment n.1(B)(iii). The enumerated crimes include “burglary of a dwelling.” Garcia-Mendez was previously convicted of burglary of a habitation in" }, { "docid": "16406244", "title": "", "text": "at 364, 2005 WL 627963, at *7. It then held that “[bjecause these two sentencing ranges do not overlap, the district court’s error necessarily increased [the defendant’s] sentence and thus affected his substantial rights.” Id.; see also Insaulgarat, 378 F.3d at 468 n. 17 (holding that because the district court’s error resulted in the imposition of a sen-fence substantially greater than the maximum otherwise permitted under the Sentencing Guidelines, the error affected the defendant’s substantial rights and the fairness of the judicial proceedings); Gracia-Cantu, 302 F.3d at 312 (same). In the present case, without the sixteen-level enhancement for committing a “crime of violence,” Alfaro at most would have been subject to an eight-level enhancement under § 2L1.2(b)(l)(C) for being convicted of an “aggravated felony.” Accordingly, he would have faced a sentencing range of, at most, fifteen to twenty-one months, far less than the fifty-month sentence he received. Thus, the district court’s error in the present case resulted in the imposition of a sentence that was substantially greater than would otherwise have been permitted under the Sentencing Guidelines, thereby affecting Alfaro’s substantial rights and the fairness of the judicial proceedings. See, e.g., Villegas, 404 F.3d at 364, 2005 WL 627963, at *7; Insaulgamt, 378 F.3d at 468 n. 17; Gracia-Cantu, 302 F.3d at 312. Accordingly, we conclude that the district court committed plain error when it imposed the sixteen-level sentence enhancement pursuant to U.S.S.G. § 2L1.2(b)(l)(A)(ii), and we vacate Alfaro’s sentence and remand for resentencing. See Villegas, 404 F.3d at 364, 2005 WL 627963, at *7. B. Alfaro’s Criminal History Category With respect to Alfaro’s argument that the district court erred in assigning a criminal history point under U.S.S.G. § 4A1.2(c)(l) for his Texas state misdemeanor conviction for evading arrest, we note that both Alfaro and the government agree that the district court erred. As the government admits, under § 4A1.2(c)(l), a criminal history point should have been assigned to Alfaro’s prior conviction for evading arrest only if the conviction resulted in a sentence of probation for a year or more or imprisonment for thirty days or more. See U.S.S.G. §" }, { "docid": "22359421", "title": "", "text": "380; Johnson, 194 F.3d at 659-60. Accordingly, Baymon is challenging the sufficiency of the factual basis for his plea, and we can review despite the waiver. This Court, however, has not addressed what type of waiver provision, if any, would be sufficient to “accomplish an intelligent waiver of the right not to [be] prosecuted (and imprisoned) for conduct that does not violate the law.” Spruill, 292 F.3d at 215 (citing White, 258 F.3d at 380) (internal quotations omitted). And it is unnecessary to do so in this case, because, as we indicate below, it was not plain error to accept that Baymon was a public official, as defined by 18 U.S.C. § 201(a) and, therefore, there was a sufficient factual basis to support the plea. Whether Baymon was a public official so that the factual basis was sufficient to support his guilty plea to the bribe charges. This Court needs to determine whether it was error for the district court to accept Baymon’s plea based on the fact that he was an employee of the Bureau of Prisons at time of the offense and he admitted to being a public officer. Baymon did not object in the district court that he was not a “public official.” Therefore, we apply the plain error standard to his sufficiency challenge, as the issue is raised for the first time on appeal. United States v. Marek, 238 F.3d 310, 315 (5th Cir.2001) (en banc), cert. denied, 534 U.S. 813, 122 S.Ct. 37, 151 L.Ed.2d 11 (2001). Plain error requires Baymon to show “(1) an error; (2) that is clear or plain; (3) that affects [his] substantial rights; and (4) that seriously affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Vasquez, 216 F.3d 456, 459 (5th Cir.2000). While there is no controlling authority on point indicating Baymon is clearly not a “public official” and therefore could establish plain error, this Court has nonetheless stated in Spruill that the fact that the particular factual and legal scenario presented does not appear to have been addressed in any other reported opinion does" }, { "docid": "19352395", "title": "", "text": "qualifying phrase “under terrorizing circumstances or under circumstances which expose the person to the risk of serious bodily injury” also does not necessarily encompass an element of force. As we observed in Perez-Vargas, it is possible for a defendant to engage in behavior that exposes another person to risk of injury but without the use of force. 414 F.3d at 1286-87 (noting a Fifth Circuit holding that neglecting a child can cause bodily injury sufficient to trigger liability under state criminal code, but the underlying state statute might not qualify for a crime of violence (citing United States v. Gracia-Cantu, 302 F.3d 308, 312-13 (5th Cir.2002))). Although we do not have a case example before us, we can imagine that a person can cause fear in someone else sufficient to create “terrorizing circumstances” without the use, attempted use or threatened use of physical force against the victim. When we decide that a state law definition of a crime does not meet the strict parameters of a “crime of violence” under U.S.S.G. § 2L1.2(b)(l)(A), we can remand to the district court for review of the charging documents, plea agreement, transcript of a plea colloquy or documentation of the judge’s factual findings in the prior offense’s proceeding to determine whether conviction for the prior offense necessarily meant the defendant engaged in the required element of force. United States v. Hernandez-Garduno, 460 F.3d 1287, 1294 (10th Cir.2006). The district court here reviewed only the amended information, judgment and sentence, and therefore the documents before the court were incomplete. On remand, the government should have the opportunity to present whatever additional documents are permissible under Shepard and Hemandez-Garduno for consideration of whether the prior conviction was for a crime of violence. Therefore, we hold that the district court erred in concluding that Mr. Ruiz-Rodriguez’s prior conviction for false imprisonment was a crime of violence under U.S.S.G. § 2L1.2(b)(l)(A) and in applying a sixteen-level enhancement pursuant to that determination. We REVERSE and REMAND for resentencing. See United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir.2006) (holding that a non-harmless error applying the Guidelines warrants" } ]

[ { "docid": "22719552", "title": "", "text": "the procedure before the Board is appropriate and the judicial review so provided is adequate, Congress had power to vest exclusive jurisdiction in the Board and the Circuit Court of Appeals. Anniston Manufacturing Co. v. Davis, 301 U. S. 337, 343-346. Third. The Corporation contends that, since it denies that interstate or foreign commerce is involved and claims that a hearing would subject it to irreparable damage, rights guaranteed by the Federal Constitution will be denied unless it be held that the District Court has jurisdiction to enjoin the holding of a hearing by the Board. So to hold would, as the Government insists, in effect substitute the District Court for the Board as the tribunal to hear and determine what Congress declared the Board exclusively should hear and determine in the first instance. The contention is at war with the long settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the pre scribed administrative remedy has been exhausted. That rule has been repeatedly acted on in cases where, as here, the contention is made that the administrative body lacked power over the subject matter. Obviously, the rule requiring exhaustion of the administrative remedy cannot be circumvented by asserting that the charge on which the complaint rests is groundless and that the mere holding of the prescribed administrative hearing would result in irreparable damage. Lawsuits also often prove to have been ground less; but no way has been discovered of relieving a defendant from the necessity of a trial to establish the fact. Fourth. The Circuit Court of Appeals should have reversed the decrees for a preliminary injunction. It is true that ordinarily the decree of a District Court granting or denying a preliminary injunction will not be disturbed on appeal. But that rule of practice has no application where, as here, there was an insuperable objection to the maintenance of the suit in point of jurisdiction and where it clearly appears that the decree was the result of an improvident exercise of judicial discretion.’ Since the constitutionality of" } ]

[ { "docid": "14480648", "title": "", "text": "manifestly unreviewable by the terms of Section 1122(f). The cases relied on by the appellants are significantly distinct, both factually and legally, from the instant case. In United States ex rel. Kaloudis v. Shaughnessy, 180 F.2d 489 (2d Cir. 1950), the court affirmed a district court’s refusal to grant an alien a hearing to review whether the Attorney General had abused his discretion in failing to suspend a deportation order. According to Chief Judge Learned Hand, “unless the ground stated [in the Attorney General’s order] is on its face insufficient, he must accept the decision, for it was made in the ‘exercise of discretion,’ which we have again and again declared that we will not review.” Id. at 490. Texas Medical Association v. Mathews, 408 F.Supp. 303 (W.D.Tex. 1976) and D. C. Federation of Civil Associations v. Volpe, 148 U.S.App.D.C. 207, 459 F.2d 1231 (D.C. Cir. 1972) involved the scope of authorized judicial review and not the power to undertake review in the face of an express statutory preclusion. Moreover, the nature and degree of the pressures exerted in those cases were significantly different than in the instant case. In Mathews, the pressure was “that he must either change his position or his job would be at stake.” 408 F.Supp. at 309. There was repeated and vocal public pressure by a Senator and a staff member of the Senate Finance Committee. In Volpe, there were clear threats of a loss of appropriations. IV. Claims Against the DPA The appellants also charge: that the DPA’s approval of Plan Omega was inconsistent with applicable standards, criteria and plans; that DPA violated its obligations under Section 1122 by failing to consider and determine that the June 9, 1976 modification of Plan Omega required a Section 1122 review; that the DPA violated its obligations under Section 1122 by failing to consider and determine that the changes required to comply with the findings of the Office of Civil Rights required a complete review of the entire project. Because these are not “determinations by the Secretary,” the plaintiffs contend that review is not precluded by Section" }, { "docid": "14480638", "title": "", "text": "Omega in violation of Title VI. The Secretary indicated that Plan Omega might comply with Title VI and Section 504 if WMC made certain changes in the Plan. As a result, a .contract was executed between WMC and HEW on November 1, 1977 in which WMC agreed: to provide a transportation system for patients, employees, and visitors between the urban and suburban locations; to institute a patient allocation system for services that were available at both locations; and to alter construction and renovation plans in order to accommodate handicapped persons. In the interim, on February 4, 1977, the plaintiffs in the instant case exercised their statutory prerogative under Section 1122(f) by requesting the Secretary to reconsider his August 6,1976 determination to approve Plan Omega under Section 1122. On September 7, 1977, Harold Margulies, M.D., Acting Administrator of the Health Resources Administration of HEW, responded to the request for reconsideration and affirmed the prior determination of August 6, 1976 which approved the plan. Dr. Margulies’ letter stated that if WMC agreed to make the modifications required to comply with Title VI and Section 504, it would have to. submit the modified Plan Omega in its entirety to the BCHP for another Section 1122 review. On October 12,1977, however, Dr. Margulies disavowed such an interpretation stating that any such reconsideration would be inconsistent with the Section 1122 program regulations. He stated further that if changes were made in Plan Omega to satisfy OCR, those changes would be subject to Section 1122 review only to the extent that any one or more of them amounted to a “capital expenditure” as defined by the regulations and were deemed by the DPA to warrant review. On November 11,1977, Wilmington United Neighborhoods (WUN) initiated Wilmington United Neighborhoods, et al. v. Department of Health, Education and Welfare, et al., (WUN v. HEW), (No. 78-2633), seeking to invalidate the approvals under Section 1122 of Plan Omega by HEW and the state and local health planning agencies on the grounds that they had violated their duties as mandated by Section 1122 and the fifth and fourteenth amendments to the" }, { "docid": "23278475", "title": "", "text": "could be reduced in a significantly different manner than those occurring in the plants at issue in Continental I. The Secretary argues that Continental’s plants are not similar for noise reduction purposes and that this is a factual issue which the Commission, and not the district court, is entitled to determine. The Commission’s finding in Continental II, however, that the plants are not similar is not supported by substantial evidence in the record considered as a whole. Moreover, the qualifying language in the district court’s injunction permits the Secretary to act against noise violations if it can at any time show the dissimilarity it alleges. . We note, as did the Fifth Circuit, that whenever a court considers applying the doctrine of collateral estoppel, there is always a lingering question whether the party might have succeeded in proving his point if he had only been given a second chance at producing evidence. Without more, however, this question is not sufficient to outweigh the extremely important policy underlying the doctrine of collateral estoppel — that litigation of issues at some point must come to an end. James Talcott, Inc. v. Allahabad Bank, Ltd., 444 F.2d at 463. . See generally, IB Moore’s Federal Practice U 0.443[5] at 3919 (2d ed. 1974). . See id. at fl 0.409; Coca-Cola Co. v. F. T. C., 475 F.2d 299, 304 (5th Cir.), cert. denied, 414 U.S. 877, 94 S.Ct. 121, 38 L.Ed.2d 122 (1973). Cf. United States v. Willard Tablet Co., 141 F.2d 141 (7th Cir. 1944). . The doctrine essentially is that “no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.” Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463, 82 L.Ed. 638 (1938). . The Secretary relies for its exhaustion argument on cases which require exhaustion notwithstanding the fact that constitutional questions are raised. See, e. g., Blocksom & Co. v. Marshall, 582 F.2d 1122 (7th Cir. 1978); Marshall v. Northwest Orient Airlines, Inc., 574 F.2d 119 (2d Cir. 1978). The present case is distinguishable, however," }, { "docid": "22295012", "title": "", "text": "granted the motion to dismiss. In this en banc rehearing we consider whether, under relevant Supreme Court holdings, exhaustion of adequate state administrative remedies can ever be a prerequisite to actions under section 1983 and, if so, whether we should adopt such a rule in this Circuit. In concluding that exhaustion of state administrative proceedings should sometimes precede federal court consideration of section 1983 claims, we first, examine the exhaustion doctrine as traditionally applied to suits against Government officers, second, review the Supreme Court cases to determine that they do not foreclose a flexible exhaustion rule in section 1983 cases, third, examine the state of the law in the other Courts of Appeals, which reveals a conflict on the point, and fourth, consider the objections to and the policy considerations for the implementation of an exhaustion requirement. Deciding after this analysis that exhaustion should be required under certain standards, we then review the case before us and conclude that the district court’s dismissal should be vacated and the case remanded for full consideration of the adequacy of the administrative procedures available to plaintiff to determine whether exhaustion is required in light of our opinion in this case. I. The Exhaustion Doctrine It has long been established that a party will normally be denied judicial relief for injury until available administrative remedies have been exhausted. As the Supreme Court stated in one of the leading cases dealing with the exhaustion doctrine, Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463, 82 L.Ed. 638 (1938): [T]he long settled rule of judicial administration [is] that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted. The rule applies in federal courts to both state and federal administrative remedies, and has been said to be of special force in federal-state cases. Illinois Commerce Commission v. Thomson, 318 U.S. 675, 63 S.Ct. 834, 87 L.Ed. 1075 (1943); Natural Gas Pipeline Co. v. Slattery, 302 U.S. 300, 58 S.Ct. 199, 82 L.Ed. 276 (1937); Gilchrist v. Interborough Rapid Transit Co., 279" }, { "docid": "14480683", "title": "", "text": "(citing 42 C.F.R. § 100.-106(c)(4) (1978)). . Such reasoning does not comport with the language of the statute, for, as this Court has previously noted, the statute is silent as to what the Secretary does if a project is approved by the DPA. See NAACP v. Medical Center, Inc., 584 F.2d 619, 628 & n.13 (3d Cir. 1978). It could therefore be argued that when approval is granted, nothing is within the preclusion-of-review reach of § 1122(f). The majority concludes that the DPA’s approval of the Medical Center’s proposal, and the Secretary’s determination that the approval was procedurally sound, may not be reviewed because of § 1122(f)’s reference to a determination by the Secretary under that section. Yet the only determination by the Secretary mentioned in § 1122 is a determination by the Secretary when a proposed expenditure has not been approved by the DPA. The sole reference to the meaning of “a determination by the Secretary under [§ 1122]” is subsection (d), which is headed “Determination of amount of exclusions from Federal payments.” A roadmap to that complex provision would read as follows: (1) If the Secretary determines that (A) the DPA was not given notice of a proposed capital expenditure or (B) the DPA was given notice and (i) has notified the proponent within a reasonable time that the expenditure is not approved, and (ii) has, prior to that decision (I) consulted with certain other agencies and (II) granted the provider an opportunity for a hearing, then the Secretary shall exclude from federal reimbursement any costs attributable to that expenditure. (2) Despite the DPA’s disapproval, the Secretary may still reimburse the provider if the Secretary submits the matter to a national “advisory council” and that council demonstrates the virtue of the expenditure. See 42 U.S.C. § 1320a-1(d) (1976). Nothing in § 1122 refers to any procedure of the Secretary when the DPA approves the capital expenditure. The facts of this case, therefore, are totally outside the clear meaning of § 1122(f)’s preclusion of administrative or judicial review. As a subsidiary point, this analysis of the core of §" }, { "docid": "14480684", "title": "", "text": "roadmap to that complex provision would read as follows: (1) If the Secretary determines that (A) the DPA was not given notice of a proposed capital expenditure or (B) the DPA was given notice and (i) has notified the proponent within a reasonable time that the expenditure is not approved, and (ii) has, prior to that decision (I) consulted with certain other agencies and (II) granted the provider an opportunity for a hearing, then the Secretary shall exclude from federal reimbursement any costs attributable to that expenditure. (2) Despite the DPA’s disapproval, the Secretary may still reimburse the provider if the Secretary submits the matter to a national “advisory council” and that council demonstrates the virtue of the expenditure. See 42 U.S.C. § 1320a-1(d) (1976). Nothing in § 1122 refers to any procedure of the Secretary when the DPA approves the capital expenditure. The facts of this case, therefore, are totally outside the clear meaning of § 1122(f)’s preclusion of administrative or judicial review. As a subsidiary point, this analysis of the core of § 1122 underscores Congress’s exclusive focus in the statute on the means for saving federal money. . At least one of the contentions of the plaintiffs is purely a matter of interpreting the federal statute. Contrary to the majority’s assertion that the Secretary determined that no new § 1122 review was required after the Medical Center altered its plan to comply with the finding of the Office of Civil Rights, see majority opinion at 119, the letter of Dr. Margulies as Acting Administrator of HEW’s Health Resources Administration simply asserted that “[t]he decision whether an expenditure warrants DPA review . is in the first instance one for the DPA.” The definition of a “capital expenditure,” though, is set by the statute. 42 U.S.C. § 1320a-l(g) (1976). It is questionable, therefore, whether HEW could give the DPA discretion to exempt from review, as it seems to have done in 42 C.F.R. § 100.-103(a)(2)(v) (1978), a capital expenditure that meets the statutory definition. I do not suggest that federal jurisdiction on this matter should be exclusive. Indeed, state" }, { "docid": "14480646", "title": "", "text": "at 628, the Secretary has mere ministerial duties where a state has approved an application; he therefore lacks discretionary power to override the decision of the DPA once the state agency has approved, by proper procedure, a proposed capital expenditure. The second claim made against HEW implicates the integrity of administrative decision making. The appellants argue that HEW reversed its earlier determination that Plan Omega, as modified to comply with the findings of the Office for Civil Rights, required a new Section 1122 review “on the basis of the influence of a personal friend of the President,” Brief of Appellant at 20, and that this claim is not within the reach of Section 1122(f)’s preclusion of review provision. The claimed influence was in the form of a letter received by Secretary Califano on September 30, 1977 from Irving Shapiro, Chairman of the Board of the DuPont Company. The appellants variously describe Shapiro as an “unofficial economic advisor to the President,” Brief of Appellant at 13, “a close associate and personal friend of the President,” Id. at 20, and as “a powerful economic figure, a personal friend and ad-visor to the President.” Id. at 25. The district court held: As the October 12 letter to the plaintiffs’ counsel illustrates, however, the Secretary based his decision on his interpretation of the statute and the regulations implementing it. The fact that HEW apparently had reached a contrary conclusion only a month earlier, or that the interpretation may be erroneous as a matter of law, or that the Secretary’s decision may have been influenced by a letter from a business leader and personal friend of the President is irrelevant, because in any of those events section 1122(f) would still preclude judicial review. See Briscoe v. Bell, supra, 432 U.S. at 409-15, 97 S.Ct. 2428. 458 F.Supp. at 639 (footnotes omitted). It is clear that the Secretary determined that under the applicable regulations, no new Section 1122 review of Plan Omega would be required, even if Plan Omega was modified to comply with the finding of the Office of Civil Rights. Such a determination is" }, { "docid": "20121010", "title": "", "text": "be enjoined and set aside is not ripe for adjudication at this time. V. As additional grounds for dismissal, the government alleges that Mulberry Hills has failed to exhaust its administrative remedies. In Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938), the Supreme Court stated the “long settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.” 303 U.S. at 50-51, 58 S.Ct. at 463-464. See also Their ford Properties IV Ltd. Partnership v. United States Department of Housing & Urban Development, 907 F.2d 445, 448 (4th Cir.1990). In Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981), the Supreme Court held that there is no implied right of action under the CWA. Rather, only those remedies expressly set forth in the CWA are available to private parties. In 33 U.S.C. § 1365, the CWA provided causes of action in limited circumstances for private plaintiffs. Mulberry Hills does not claim to fall within any of the specified categories of allowable suits. Accordingly, this Court does not have original jurisdiction over the regulations and acts of the agency pursuant to the CWA. Where administrative procedures are in place to review a plaintiff’s grievance, the plaintiff must first proceed to the agency for an administrative determination of the issues. See United States v. Western Pacific Railroad Co., 352 U.S. 59, 63, 77 S.Ct. 161, 165, 1 L.Ed.2d 126 (1956) (“judicial interference should be withheld until administrative process has run its course.”). See also, Swanson v. United States, 600 F.Supp. 802 (D.Idaho 1985), aff'd 789 F.2d 1368 (9th Cir.1986). There are four purposes behind the requirement of exhaustion of administrative remedies: First, it carries out the congressional purpose in granting authority to the agency by discouraging the ‘frequent and deliberate flouting of administrative processes [that] could ... encourag[e] people to ignore its procedures____’ Second, it protects agency autonomy by allowing the agency the opportunity in the first instance to" }, { "docid": "14480645", "title": "", "text": "disagree and find no support either in the statute or in its history to support such an ethereal distinction. In Briscoe v. Bell, 432 U.S. 404, 97 S.Ct. 2428, 53 L.Ed.2d 439 (1977), the Supreme Court rejected a similarly artificial distinction. At issue in that case was Section 4(b) of the Voting Rights Act of 1965 which provides that a determination of the Attorney General or Director of the Census that a State is covered by the Act “shall not be re viewable in any court.” The lower courts in that case had held that notwithstanding this language there was jurisdiction to consider the “pure legal question” whether the executive officials had correctly interpreted an Act of Congress. The Supreme Court unanimously reversed stating “[t]he language is absolute on its face and would appear to admit of no exceptions.” Id. The appellant’s argument also rests on the erroneous premise that the Secretary is empowered to perform an independent review of the DPA’s findings. As this court held in NAACP v. Medical Center, Inc., 584 F.2d at 628, the Secretary has mere ministerial duties where a state has approved an application; he therefore lacks discretionary power to override the decision of the DPA once the state agency has approved, by proper procedure, a proposed capital expenditure. The second claim made against HEW implicates the integrity of administrative decision making. The appellants argue that HEW reversed its earlier determination that Plan Omega, as modified to comply with the findings of the Office for Civil Rights, required a new Section 1122 review “on the basis of the influence of a personal friend of the President,” Brief of Appellant at 20, and that this claim is not within the reach of Section 1122(f)’s preclusion of review provision. The claimed influence was in the form of a letter received by Secretary Califano on September 30, 1977 from Irving Shapiro, Chairman of the Board of the DuPont Company. The appellants variously describe Shapiro as an “unofficial economic advisor to the President,” Brief of Appellant at 13, “a close associate and personal friend of the President,” Id." }, { "docid": "21602626", "title": "", "text": "other remedies available at law or equity. (b) Enforcement. (1) Any person may maintain an action for declaratory and equitable relief to restrain any violation of this chapter.... (d) Judicial Review — Writ of Review. ... a petition for writ of review may be filed in the District Court of the Virgin Islands in the case of any person aggrieved by the granting or denial of an application for a coastal zone permit ... provided that such administrative remedies as are provided by this chapter have been exhausted.” Id. § 913. Section 914 describes the administrative appeal process: “Notwithstanding any provision of law to the contrary, any aggrieved person may file an appeal of an action by the Commission ... with the Board of Land Use Appeals_” Id. § 914(a). With these provisions of the Coastal Zone Management Act in mind, we turn to the plaintiffs’ contentions of error. II. Soon after the district court complaint was filed, Reflection Bay moved to dismiss, citing the plaintiffs' failure to appeal to the Board. Plaintiffs responded that the legislature intended to grant an election of remedies by reciting in section 913(a) that the provisions “shall cumulative and not exclusive.” Id. § 913(a). The district court rejected the plaintiffs’ construction because it would circumvent the exhaustion requirement in section 913(d), thus nullifying that provision in practice. As the judge explained, such an interpretation “would displace the Board’s function as an expert appellate panel in this area, and would unduly clog this Court with premature challenges of essentially administrative rulings.” The district court’s reasoning is in keeping with the general judicial disinclination to interfere with the administrative process until it has been completed. As the Supreme Court explained in Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463, 82 L.Ed. 638 (1938), the “long settled rule of judicial administration [is] that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy had been exhausted.” The exhaustion rule rests on the premise that it is more efficient to allow the administrative process to" }, { "docid": "14480667", "title": "", "text": "has foreclosed jurisdiction by the federal judiciary when an action has been asserted against the DPA. In concluding that there is no jurisdiction to consider the complaint here, which has been asserted by consumers of hospital services in the Wilmington area, the majority relies solely on congressional intent in enacting § 1122(f). Inasmuch as the foreclosure of judicial review in § 1122(f) is textually limited to “a determination by the Secretary,” a claim by the plaintiffs should not be cut off unless a fair construction of subsection (f) equates action by the DPA with “a determination by the Secretary.” The majority candidly acknowledges that the statute “ ‘does not expressly preclude judicial review of DPA approvals [of capital expenditures],’ ” but maintains, as did the district court, that “ ‘nonreviewability may be inferred from [the] statute’s purpose and its legislative history.’ ” Yet, according to the governing principles conceded by the majority, it is “ ‘only upon a showing of “clear and convincing evidence” of a contrary legislative intent’ that the courts should restrict access to judicial review.” The meager legislative history applicable to § 1122 does not yield such “clear and convincing evidence.” Thus, that section cannot sustain the majority’s conclusion in this regard. This Court has already demarcated the respective roles of the DPA and the Secretary. We have said that the state agency has a substantive duty “to assess any capital expenditure ... to determine if [it] is consistent with the state’s need for adequate health care in the area.” And we have also made clear that the Secretary, on the other hand, “has mere ministerial duties” — i. e., he has no discretion to review the DPA’s substantive assessment, and may examine only the procedures employed to ensure that all the correct steps were taken. Here, the DPA is a state agency, while HEW is, of course, a federal department. It is the obligation of the DPA to evaluate the proposed capital expenditure to ensure conformity with local needs as set forth in the area or statewide plan — a plan that must be consonant with" }, { "docid": "14480636", "title": "", "text": "to be unnecessary “an opportunity for a fair hearing.” 42 U.S.C. § 1320a-l(b)(3). Following its approval by the DPA, the Secretary then performs the ministerial act of assuring that the proper procedure has been followed. If, however, the expenditures have been found by the DPA to be inconsistent with the state or local health care facility needs or plans, the Secretary may, in certain limited instances, override the State’s recommendation. 42 U.S.C. § 1320a-l(d)(2). Finally, Section 1122(f) provides: Any person dissatisfied with a determination by the Secretary under this section may within six months following notification of such determination request the Secretary to reconsider such determination. A determination by the Secretary under this section shall not be subject to administrative or judicial review. 42 U.S.C. § 1320a-1(f). This provision and its meaning are at the heart of this appeal. b. Facts On March 19, 1976, WMC sought Section 1122 approval for Plan Omega. As required by the statute, WMC made an application to the Delaware BCHP and to a local health planning group for review of the relocation plan. Following a substantive review of Plan Omega, the state and local agencies certified it as necessary. The DPA forwarded its finding to the Secretary who then issued a Section 1122 approval of Plan Omega in August of 1976. As a result of this approval, WMC was assured that the Secretary would not withhold payment of the capital component of WMC’s charges to patients under Medicare, Medicaid, and child health programs on the ground that the component charge was the product of an unnecessary capital expenditure. On September 10, 1976, the complaint, challenging Plan Omega under Title VI of the Civil Rights Act, was filed in the district court. On January 19, 1977, the district court ordered HEW to investigate the charges of those plaintiffs that Plan Omega was in violation of Title VI and Section 504 and to report its findings back to the court. 426 F.Supp. 919 (D.Del.1977). On July 5,1977, during the course of that litigation, the Secretary of HEW, through the Office for Civil Rights (OCR), found Plan" }, { "docid": "14480651", "title": "", "text": "forth in Section 1122(f), it is inconceivable that Congress could have intended the Federal Judiciary to play a more active role than the Secretary by reviewing under any standard the substance of the DPA’s approval of a proposed capital expenditure. 458 F.Supp. at 641. The appellants argue, however, that Section 1122 is a “federal” program which requires, for the sake of uniformity, the intervention of the federal courts. They argue further that if “the causes against the DPA are precluded from federal judicial review, it is possible to have 50 different interpretations and applications of the federal regulations.” Brief of Appellants at 36. We find these arguments unpersuasive. Statutes precluding judicial review would be rendered meaningless if the federal courts could always intervene in so-called “federal” programs. Moreover, we reject the appellants’ underlying premise that the program is a “federal” one. All evaluations of the merits of health programs are conducted at the state and local level. The relevant passages of the legislative history are appropriately titled “Limitation on Federal Participation for Capital Expenditures” and evidence a concern for federal participation in an essentially local effort rather than federal control and direction of a federal program. The regulations are not patterned to bring about rigid federal uniformity. On the whole, it is clear that the states’ role in health care planning was not to be supplanted. Our disagreement with the dissent is basic and fundamental. First, the dissent has failed to explain the incongruity that results from its approach — that Congress could have intended to provide federal judicial intervention and review of the state DPA decisions while at the same time precluding such federal judicial intervention and review generally of the decisions of the federal administrator, the Secretary of HEW. To allow the review of the DPA decisions as urged by the dissent disregards the fact that the DPA is a single step in an administrative decision-making process where Congress was clearly concerned about making the Section 1122 review process a streamlined procedure. See 42 C.F.R. § 100.106(a)(2). Second, the dissent’s argument rests on the erroneous premise that the" }, { "docid": "14480644", "title": "", "text": "reason to believe that such was the purpose of Congress.’ A clear command of the statute will preclude review; and such a command may be inferred from its purpose. It is, however, ‘only upon a showing of “clear and convincing evidence” of a contrary legislative intent’ that the courts should restrict access to judicial review.” Barlow v. Collins, 397 U.S. 159, 166-167, 90 S.Ct. 832, 838, 25 L.Ed.2d 192 (1970), quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 140-141, 87 S.Ct. 1507, 1510-1511, 18 L.Ed.2d 681 (1967). The command of Section 1122(f) cannot be clearer. It provides in the clearest of terms that “[a] determination by the Secretary under this section shall not be subject to administrative or judicial review.” In order to avoid the unequivocal bar to judicial review provided in Section 1122(f), the appellants assert a distinction between “substantive” and “procedural” determinations by the Secretary. That is, because “the issue goes to the power to make determinations, not the determination itself,” Brief of Appellants at 24, Section 1122(f) does not preclude review. We disagree and find no support either in the statute or in its history to support such an ethereal distinction. In Briscoe v. Bell, 432 U.S. 404, 97 S.Ct. 2428, 53 L.Ed.2d 439 (1977), the Supreme Court rejected a similarly artificial distinction. At issue in that case was Section 4(b) of the Voting Rights Act of 1965 which provides that a determination of the Attorney General or Director of the Census that a State is covered by the Act “shall not be re viewable in any court.” The lower courts in that case had held that notwithstanding this language there was jurisdiction to consider the “pure legal question” whether the executive officials had correctly interpreted an Act of Congress. The Supreme Court unanimously reversed stating “[t]he language is absolute on its face and would appear to admit of no exceptions.” Id. The appellant’s argument also rests on the erroneous premise that the Secretary is empowered to perform an independent review of the DPA’s findings. As this court held in NAACP v. Medical Center, Inc., 584 F.2d" }, { "docid": "14430827", "title": "", "text": "the exhaustion rule applied. Specifically, it held that exhaustion would have been futile and that the available administrative remedies would have been insufficient. Further, the court determined that to require exhaustion would have shielded the ALJ’s order from scrutiny. The court therefore excused Darby from exhausting his administrative remedies prior to seeking judicial review. The Secretary appeals the denial of the motion to dismiss. II. Relying on Holcomb v. Colony Bay Coal Co., 852 F.2d 792 (4th Cir.1988), the Secretary contends that 24 C.F.R. § 24.-314(c) (1991) imposes a mandatory exhaustion requirement. This section provides: The hearing officer’s determination shall be final unless ... the Secretary ... within 30 days of receipt of a request decides as a matter of discretion to review the finding of the hearing officer. The 30 day period for deciding whether to review a determination may be extended upon written notice of such extension by the Secretary or his designee. Any party may request such a review in writing within 15 days of receipt of the hearing officer’s determination. Id. (emphasis added). Darby argues that the district court properly concluded that the regulation does not prescribe a requirement of exhaustion. In Holcomb, this court examined a virtually identical regulation which provided that a party adversely affected by an ALJ’s decision “ ‘may file with the [Federal Mine Safety and Health Review] Commission a petition for discretionary review within 30 days after issuance of the order or decision.’ ” Holcomb, 852 F.2d at 795 (quoting 29 C.F.R. § 2700.70(a) (1987)). We held that the claimant was required to exhaust administrative remedies prior to seeking judicial review. We read Holcomb as an application of the rule of judicial administration that even when a statute does not impose an explicit directive, exhaustion is still required. It is a “ ‘long settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.’ ” Thetford Properties IV Ltd. P’ship v. United States Dep’t of Hous. & Urban Dev., 907 F.2d 445, 448 (4th Cir.1990)" }, { "docid": "14480637", "title": "", "text": "of the relocation plan. Following a substantive review of Plan Omega, the state and local agencies certified it as necessary. The DPA forwarded its finding to the Secretary who then issued a Section 1122 approval of Plan Omega in August of 1976. As a result of this approval, WMC was assured that the Secretary would not withhold payment of the capital component of WMC’s charges to patients under Medicare, Medicaid, and child health programs on the ground that the component charge was the product of an unnecessary capital expenditure. On September 10, 1976, the complaint, challenging Plan Omega under Title VI of the Civil Rights Act, was filed in the district court. On January 19, 1977, the district court ordered HEW to investigate the charges of those plaintiffs that Plan Omega was in violation of Title VI and Section 504 and to report its findings back to the court. 426 F.Supp. 919 (D.Del.1977). On July 5,1977, during the course of that litigation, the Secretary of HEW, through the Office for Civil Rights (OCR), found Plan Omega in violation of Title VI. The Secretary indicated that Plan Omega might comply with Title VI and Section 504 if WMC made certain changes in the Plan. As a result, a .contract was executed between WMC and HEW on November 1, 1977 in which WMC agreed: to provide a transportation system for patients, employees, and visitors between the urban and suburban locations; to institute a patient allocation system for services that were available at both locations; and to alter construction and renovation plans in order to accommodate handicapped persons. In the interim, on February 4, 1977, the plaintiffs in the instant case exercised their statutory prerogative under Section 1122(f) by requesting the Secretary to reconsider his August 6,1976 determination to approve Plan Omega under Section 1122. On September 7, 1977, Harold Margulies, M.D., Acting Administrator of the Health Resources Administration of HEW, responded to the request for reconsideration and affirmed the prior determination of August 6, 1976 which approved the plan. Dr. Margulies’ letter stated that if WMC agreed to make the modifications required" }, { "docid": "14480643", "title": "", "text": "approval could result in the loss to the plaintiffs of “necessary, accessible and cost efficient health care.” Section 1122 denies reimbursement for unnecessary capital expenditures in the hope of promoting rational health planning and cost containment. Implicit in this legislative scheme is the assumption that more efficient use of health care dollars results in more effective delivery of health care services. We believe that the appellants, as consumers of health care services in Wilmington, have a sufficient stake in the outcome of this controversy and are clearly within the zone of interests Section 1122 was designed to protect. III. Claims Against HEW Two claims against HEW are pressed on appeal. The first is that HEW violated its obligation under Section 1122 by failing to determine whether the approval of Plan Omega by the DPA was consistent with federal standards and criteria and federally-approved plans. We begin with an examination of the controlling precepts: “ ‘[Jjudicial review of a final agency action by an aggrieved person will not be cut off unless there is a persuasive reason to believe that such was the purpose of Congress.’ A clear command of the statute will preclude review; and such a command may be inferred from its purpose. It is, however, ‘only upon a showing of “clear and convincing evidence” of a contrary legislative intent’ that the courts should restrict access to judicial review.” Barlow v. Collins, 397 U.S. 159, 166-167, 90 S.Ct. 832, 838, 25 L.Ed.2d 192 (1970), quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 140-141, 87 S.Ct. 1507, 1510-1511, 18 L.Ed.2d 681 (1967). The command of Section 1122(f) cannot be clearer. It provides in the clearest of terms that “[a] determination by the Secretary under this section shall not be subject to administrative or judicial review.” In order to avoid the unequivocal bar to judicial review provided in Section 1122(f), the appellants assert a distinction between “substantive” and “procedural” determinations by the Secretary. That is, because “the issue goes to the power to make determinations, not the determination itself,” Brief of Appellants at 24, Section 1122(f) does not preclude review. We" }, { "docid": "14480649", "title": "", "text": "the pressures exerted in those cases were significantly different than in the instant case. In Mathews, the pressure was “that he must either change his position or his job would be at stake.” 408 F.Supp. at 309. There was repeated and vocal public pressure by a Senator and a staff member of the Senate Finance Committee. In Volpe, there were clear threats of a loss of appropriations. IV. Claims Against the DPA The appellants also charge: that the DPA’s approval of Plan Omega was inconsistent with applicable standards, criteria and plans; that DPA violated its obligations under Section 1122 by failing to consider and determine that the June 9, 1976 modification of Plan Omega required a Section 1122 review; that the DPA violated its obligations under Section 1122 by failing to consider and determine that the changes required to comply with the findings of the Office of Civil Rights required a complete review of the entire project. Because these are not “determinations by the Secretary,” the plaintiffs contend that review is not precluded by Section 1122(f). The district court held that while “section 1122(f) does not expressly preclude judicial review of DPA approvals, . . . nonreviewability may be inferred from a statute’s purpose and its legislative history.” 458 F.Supp. at 641. We agree. Congress intended with Section 1122 to contain “hospital costs by limiting federal reimbursements covering capital expenditures for health care to those expenditures deemed necessary by the state” and to encourage “rational health planning by the states.” NAACP v. Medical Center, Inc., 584 F.2d at 627-628 (em phasis supplied). The legislative history demonstrates that Congress envisioned that “[t]he bill would in no way change the autonomy or authority of existing State or local planning agencies.” H.R.Rep.No.231, 92d Cong., 2d Sess., reprinted in [1972] U.S. Code Cong. & Admin.News, pp. 4989, 5066. The surest way to “change the autonomy or authority of existing State or local planning agencies” is to hold that the DPA’s determinations are reviewable. We decline to do so. The district court correctly reasoned: Given the prohibition on judicial review of the Secretary's decision set" }, { "docid": "14480635", "title": "", "text": "expenditures to the State and subsequently have them approved are reimbursed with federal funds for that portion of a patient’s bill constituting capital costs, that is, depreciation, interest or return on equity capital. The State of Delaware has entered into such an agreement with HEW and designated the BCHP as the State’s designated planning agency (DPA) to carry out its responsibility under Section 1122. Under the statute, the DPA is charged with reviewing proposed capital expenditures to determine whether they are consistent with the standards or plans developed to meet the need for adequate health care facilities in the area of the state affected. 42 U.S.C. § 1320a-l(b). The DPA is required to consult with local health planning agencies interested in a particular proposal and to submit to the Secretary of HEW the findings of those agencies on the proposed expenditure and the DPA’s own findings and recommendations, along with any supporting materials deemed necessary by the Secretary. Id. The DPA is also required to establish procedures for affording proponents of a capital expenditure found to be unnecessary “an opportunity for a fair hearing.” 42 U.S.C. § 1320a-l(b)(3). Following its approval by the DPA, the Secretary then performs the ministerial act of assuring that the proper procedure has been followed. If, however, the expenditures have been found by the DPA to be inconsistent with the state or local health care facility needs or plans, the Secretary may, in certain limited instances, override the State’s recommendation. 42 U.S.C. § 1320a-l(d)(2). Finally, Section 1122(f) provides: Any person dissatisfied with a determination by the Secretary under this section may within six months following notification of such determination request the Secretary to reconsider such determination. A determination by the Secretary under this section shall not be subject to administrative or judicial review. 42 U.S.C. § 1320a-1(f). This provision and its meaning are at the heart of this appeal. b. Facts On March 19, 1976, WMC sought Section 1122 approval for Plan Omega. As required by the statute, WMC made an application to the Delaware BCHP and to a local health planning group for review" }, { "docid": "14480678", "title": "", "text": "in a case over which it has by law jurisdiction, it is its duty to take such jurisdiction.”) The constitutional structure of our government may, of course, weigh heavily in favor of delaying federal judicial jurisdiction for, e. g., exhaustion of state or administrative remedies. But what is at stake in this case is not a delay of jurisdiction because of deferral to another branch of the government or to the state on the possibility that a dispute may be settled on nonfederal or nonconstitutional grounds, but whether or not any judicial relief at all may be had for the alleged wrongs. . Majority opinion at 119 (quoting district court opinion, 458 F.Supp. at 628). . Barlow v. Collins, 397 U.S. 159, 166-67, 90 S.Ct. 832, 838, 25 L.Ed.2d 192 (1970) (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 140-41, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)), quoted in majority opinion at 118. . The entire legislative history addressing subsection (f) alone consists only of one sentence paraphrasing the statute. The section as a whole is not given much more extensive explanation, and that given is not especially instructive as to the judicial review issue. See pp. 115-116 & note 24 infra. The subsequent legislative history on the section as a whole, relied upon by the majority opinion at 119, seems to me to be simply a reiteration of the point that the nationwide health planning envisioned by Congress was an experiment in cooperative federalism — neither exclusively state nor federal. As such, it lends no illumination to the question whether § 1122(f) was intended to cut off review of DPA decisions. . NAACP v. Medical Center, Inc., 584 F.2d 619, 628 (3rd Cir. 1978). . Id. . This Court stated: Our understanding of § 1122 is in accord with that of the Secretary and in accord with the perceptions of the district court as well. “If [a § 1122] application has received complete approval when it reaches the Secretary, he then performs the ministerial act of assuring that the proper procedure has been followed. The Secretary, however, has no" } ]

[ { "docid": "22938754", "title": "", "text": "Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359 (7th Cir. 1988); and La Montagne v. American Convenience Products, Inc., 750 F.2d 1405 (7th Cir. 1984), to the extent that these opin ions insist on the use of the direct- and-indireet framework. (As with the convincing-mosaic cases, we are not saying that any of these decisions produced a victory for the wrong litigant; our concern is with the legal standards they employed rather than with their outcomes.) One point of clarification may be helpful. The burden-shifting framework created by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), sometimes is referred to as an “indirect” means of proving employment discrimination. Today’s decision does not concern McDonnell Douglas or any other burden-shifting framework, no matter what it is called as a shorthand. We are instead concerned about the proposition that evidence must be sorted into different piles, labeled “direct” and “indirect,” that are evaluated differently. Instead, all evidence belongs in a single pile and must be evaluated as a whole. That conclusion is consistent with McDonnell Douglas and its successors. With the rat’s nest of surplus “tests” removed from the law of the circuit, we can turn back to Ortiz’s claim and his supporting evidence. Stripped of the layers of tests, our analysis is straightforward. Ortiz relies on his own testimony plus depositions and declarations from other brokers, managers, and former employees. Some Werner employees testified that they always provided notice when booking a loss in another broker’s name. Some went further and said they expected someone to ask their permission before recording an unprofitable transaction in their names. Several brokers testified that they (and other brokers) sometimes removed their names from unprofitable loads. Wer-ner could not identify an express policy that forbids the practice. A former Werner broker with 20 years’ experience submitted a declaration that while at Werner he had sometimes asked tardy carriers to lower their rates and that such action reflected industry practice. Finally, several current and former employees recounted that Lass and Krikava had directed ethnic slurs at Ortiz. A" } ]

[ { "docid": "12295935", "title": "", "text": "issued a decision adopting Judge Foschio’s proposed findings and dismissing the case. Discussion Maraschiello’s brief on appeal contains no discussion of the § 1983 or defamation claims and only three sentences of unsupported argument regarding his equal protection claim. See Appellant’s Br. at 16. “Merely mentioning or simply stating an issue in an appellate brief is insufficient to preserve it for our review: an appellant must advance an argument, and we generally will decline to consider issues that are not sufficiently argued.” Niagara Mohawk Power Corp. v. Hudson River-Black River Regulating Disk, 673 F.3d 84, 107 (2d Cir.2012) (internal quotation marks and brackets omitted). Thus, it is only necessary for us to consider Maraschiello’s arguments regarding Title VII. “We review an order granting summary judgment de novo, drawing all factual inferences in favor of the non-moving party.” Ment Bros. Iron Works Co., Inc. v. Interstate Fire & Cas. Co., 702 F.3d 118, 120-21 (2d Cir.2012). “[W]e affirm only where we are able to conclude, after construing the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences in its favor, that ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir.2011) (quoting Fed.R.Civ.P. 56(a)). I. Title VII claims are generally “analyzed under the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny.” Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir.2008). At the first stage of McDonnell Douglas, a plaintiff “bears the burden of establishing a prima facie case of discrimination,” which includes demonstrating that “he suffered an adverse employment action ... under circumstances giving rise to an inference of discriminatory intent.” Id. “Once the prima facie case has been shown, ‘the burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason’ for the adverse employment action.” United States v. Brennan, 650 F.3d 65, 93 (2d Cir.2011) (quoting McDonnell Douglas, 411 U.S. at 802, 93" }, { "docid": "22986226", "title": "", "text": "to provide a legally sufficient, legitimate, nondiscriminatory reason for her non-selection; and (3) even if DPS had satisfied its burden of production, she produced evidence sufficient for a reasonable jury to find that DPS’s reason was pretextual and the denial of an appointment to the Rangers was motivated by her sex. II We review the district court’s grant of summary judgment de novo, applying the same legal standard as the district court. Rachid v. Jack in the Box, Inc., 376 F.3d 305, 308 (5th Cir.2004). Summary judgment is appropriate when the evidence “show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed R. Civ. P. 56(c). We review all facts in the light most favorable to Alvarado. Rachid, 376 F.3d at 308. III Title VII proscribes an employer from discharging or otherwise discriminating against any individual because of that individual’s sex. 42 U.S.C. § 2000e-2(a)(1). “The Title VII inquiry is whether the defendant intentionally discriminated against the plaintiff.” Roberson v. Alltel Info. Servs., 373 F.3d 647, 651 (5th Cir.2004) (internal quotation marks and citations omitted). Intentional discrimination can be established through either direct or circumstantial evidence. Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 219 (5th Cir.2001). Because Alvarado presents no direct evidence of discrimination, her claim is analyzed using the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Id. Under this framework, a plaintiff must first create a presumption of intentional discrimination by establishing a prima facie case. Id. The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-56, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The burden on the employer at this stage “is one of production, not persuasion; it 'can involve no credibility assessment.’ ” Reeves, 530 U.S. at 142, 120 S.Ct. 2097 (quoting" }, { "docid": "23700577", "title": "", "text": "the district court’s grant of summary judgment on the Title VII and ACRA claims, which are governed by the same standards. See Clegg v. Ark. Dep’t of Corr., 496 F.3d 922, 926 (8th Cir.2007). We review the grant of summary judgment de novo, viewing the evidence and drawing all reasonable inferences in the light most favorable to McCullough, the nonmoving party. Id. Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file ... show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(c). A. Title VII and the ACRA prohibit employers from discriminating based on sex with respect to compensation, terms, conditions, or privileges of employment. 42 U.S.C. § 2000e-2(a)(l); ArkCode. Ann. § 16-123-107. In this circuit, under both statutes, an employee may survive an employer’s motion for summary judgment in one of two ways. McGinnis v. Union Pac. R.R., 496 F.3d 868, 873 (8th Cir.2007). The employee may produce direct evidence of discrimination, which is “evidence showing a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the adverse employment action.” Russell v. City of Kansas City, Mo., 414 F.3d 863, 866 (8th Cir.2005). If the employee lacks direct evidence of discrimination, he can survive summary judgment by showing a genuine dispute for trial under the burden-shifting framework established in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas, the plaintiff first must establish a prima facie case of discrimination. If the plaintiff establishes a prima facie case, then the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for discharging the employee. If the employer meets this burden, then the employee must show that the employer’s proffered reason for firing him is a pretext for unlawful discrimination. At the summary judgment stage, under the 1991 amendments to Title VII, the issue is" }, { "docid": "17075995", "title": "", "text": "his implied-infaet employment contract by terminating his employment without warning. He later amended his complaint to include a claim under the ADA. The district court granted summary judgment to Pathfinder on all three claims. This appeal followed. II. ANALYSIS A. Standard of review We review a district court’s grant of summary judgment de novo. E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028, 1037 (10th Cir.2011). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine dispute as to a material fact “exists when the evidence, construed in the light most favorable to the non-moving party, is such that a reasonable jury could return a verdict for the non-moving party.” Zwygart v. Bd. of Cnty. Comm’rs, 483 F.3d 1086, 1090 (10th Cir. 2007) (internal quotation marks omitted). B. Carter’s ADA claim Carter argues that Pathfinder discriminated against him based on his disability, in violation of the ADA’s anti-discrimination provision. See 42 U.S.C. § 12112(a). We apply the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to ADA discrimination claims. C.R. England 644 F.3d at 1038. Under this framework, Carter bears the initial burden of establishing a prima facie case of discrimination. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. If he is able to make such a showing, the burden would shift to Pathfinder “to articulate some legitimate, nondiscriminatory reason” for its actions. See id. Carter would then bear the ultimate burden of showing that Pathfinder’s proffered reason is in fact a pretext designed to mask discrimination. See id. at 804, 93 S.Ct. 1817. 1. Prima facie case We begin our analysis by determining whether Carter has produced enough evidence to allow a reasonable jury to conclude that he has established a prima facie case of discrimination. This burden is “not onerous.” Plotke v. White, 405 F.3d 1092, 1099 (10th Cir.2005) (internal quotation marks omitted). Carter must show that, at the time" }, { "docid": "985738", "title": "", "text": "grant of summary judgment de novo. Cole v. Bd. of Trs. of N. Ill. Univ., 838 F.3d 888, 895 (7th Cir. 2016). The question on a motion for summary judgment is whether the moving party has shown there is “no genuine dispute as to any material fact,” and is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56(a). We construe all factual disputes and draw all reasonable inferences in favor of the non-moving party. Cole, 838 F.3d at 895. Title VII prohibits an employer from discriminating against an employee on the basis of race with respect to their compensation. 42 U.S.C. § 2000e-2(a)(l). The district court analyzed Golla’s race discrimination claim under both the “direct” and “indirect” methods of proof. See Golla v. Chief Judge of Cook Cty., No. 11 C 8149, 2015 WL 3814650, at *3-6 (N.D. Ill. June 18, 2015). However, after the district court had granted summary judgment, we held that the “direct” and “indirect” methods should no longer be treated as distinct legal standards. Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765-66 (7th Cir. 2016). Instead of separating evidence under different methods of proof, we held that “[e]vidence must be considered as a whole, rather than asking whether any particular piece of evidence proves the case by itself—or whether just the ‘direct’ evidence does so, or the ‘indirect’ evidence.” Id. at 765. We clarified that the legal standard is “simply whether the evidence would permit a reasonable factfinder to conclude that the' plaintiff s race ... caused the ... adverse employment action.” Id. Importantly, Ortiz made clear that its holding did not alter McDonnell Douglas or displace the indirect method of establishing a prima facie case of discrimination. Id. at 766. Instead, the indirect method remains “a means of organizing, presenting, and assessing circumstantial evidence in frequently recurring factual patterns found in discrimination cases.” David v. Bd. of Trs. of Cmty. Coll. Dist. No. 508, 846 F.3d 216, 224 (7th Cir. 2017). Accordingly, we will evaluate Golla’s claim under the approach set forth in Ortiz. Golla argues that he presented" }, { "docid": "22389673", "title": "", "text": "Penske on the § 1981 discriminatory discharge claim and the § 1981 retaliation claims. DISCUSSION “We review the .district court’s grant of summary judgment de novo, applying the same legal standard used by the district court.” Simms v. Oklahoma, 165 F.3d 1321, 1326 (10th Cir.1999). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as 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). “When applying this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party.” Simms, 165 F.3d at 1326. I. § 1981 Discrimination Claim A plaintiff alleging discrimination on the basis of race may prove intentional discrimination through either, direct evidence of discrimination (e.g., oral or written statements on the part of a defendant showing a discriminatory motivation) or indirect (i.e., circumstantial) evidence of discrimination. See Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1207 (10th Cir.1999); Elmore v. Capstan, Inc., 58 F.3d 525, 529 (10th Cir.1995). Kendrick offers no direct evidence of discrimination. We must therefore determine if there is sufficient indirect evidence of discrimination for Kendrick to survive summary judgment. The Supreme Court set forth the framework for assessing circumstantial evidence of discrimination in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). “While McDonnell Douglas involved a Title VII claim for failure to hire, the analytical framework it pioneered applies equally to claims brought pursuant to section 1981.” Per ry v. Woodward, 199 F.3d 1126, 1135 (10th Cir.1999); see also Patterson v. McLean Credit Union, 491 U.S. 164, 186, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). Under the McDonnell Douglas framework, the plaintiff “must carry the initial burden under the statute of establishing a prima facie case of racial discrimination.” McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. Once the plaintiff has established a prima facie case, “[t]he burden then must shift to the employer to articulate" }, { "docid": "20227868", "title": "", "text": "final tardy. Yellow fired Lake on November 23, during the 30-day probation period. Lake sued Yellow, claiming race discrimination in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(l). Yellow responded that it fired Lake due to his unavailability and tardiness. The district court granted summary judgment to Yellow. II. This court reviews a grant of summary judgment de novo, viewing the record most favorably to the non-moving party. See Ramlet v. E.F. Johnson Co., 507 F.3d 1149, 1152 (8th Cir.2007), citing Lewis v. St. Cloud State Univ., 467 F.3d 1133, 1135 (8th Cir.2006). Summary judgment is proper if the record shows “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). A plaintiff alleging race discrimination may survive summary judgment either by direct evidence, or by creating an inference of discrimination under the McDonnell Douglas burden-shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Here, Lake presents no direct evidence, so the McDonnell Douglas framework applies. Under McDonnell Douglas, the plaintiff initially has the burden to establish a prima facie case of discrimination. Id. at 802, 93 S.Ct. 1817. A prima facie case creates a rebuttable presumption of discrimination. See Kohrt v. MidAmerican Energy Co., 364 F.3d 894, 897 (8th Cir.2004). The burden then shifts to the defendant to provide a legitimate, nondiscriminatory reason for its decision. See McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. 1817. “If the defendant provides such a reason, the presumption disappears, and the burden shifts back to the plaintiff to show that the proffered reason was pretext” for discrimination. Ramlet, 507 F.3d at 1153. A. To establish a prima facie case, Lake must show (1) he is a member of a protected class, (2) he met his employer’s legitimate expectations, (3) he suffered an adverse employment action, and (4) the circumstances give rise to an inference of discrimination (for example, similarly situated" }, { "docid": "23043421", "title": "", "text": "filled by a white female. II. The board argued that Auguster had failed to establish a viable claim of discrimination. The district court, analyzing the issue under the framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny, held that, although Auguster had presented a prima facie case of discrimination, the school board had articulated a legitimate, non-discriminatory reason for his firing. Because Auguster could not establish that the proffered reason was mere pretext, the court granted summary judgment. Auguster argues that he did establish pretext. III. We review a summary judgment de novo, applying the same standards as did the district court, while viewing all disputed facts ,and reasonable inferences “in the light most favorable to the nonmoving party....” Duffy v. Leading Edge Prods., 44 F.3d 308, 312 (5th Cir.1995). Summary judgment is appropriate where “there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). To survive summary judgment, however, the nonmoving party must do more than allege an issue of material fact: “Rule 56(e) ... requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted); accord Urbano v. Continental Airlines, Inc., 138 F.3d 204, 205 (5th Cir.1998). The district court analyzed Auguster’s title VII and § 1981 claims under the framework established by McDonnell Douglas, according to which a plaintiff must first establish a piirna facie case of discrimination, whereupon the burden of production shifts to the defendant to articulate a legitimate, non-discriminatory reason for its action. Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 404 (5th Cir.1999). At that point, “the McDonnell Douglas framework — with its presumptions and burdens — disappear^], and the sole remaining issue [is] discrimination vel non.”" }, { "docid": "10205207", "title": "", "text": "District Court’s grant of summary judgment de novo. Cook v. Bennett, 792 F.3d 1294, 1298 (11th Cir.2015). To do so, we view all evidence in the light most favorable to Flowers and draw all reasonable inferences in his favor. Id. Summary judgment is appropriate only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a). A factual dispute will preclude summary judgment if its resolution “might affect the outcome of the suit under the governing law” or “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). III. Title VTI of the Civil Rights Act of 1964, in relevant part, forbids covered employers from “discriminating] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race.” 42 U.S.C. § 2000e-2(a)(l). Employees who believe that they are the victims of racial discrimination may, of course, present direct evidence of that discrimination. When direct evidence of unlawful discrimination is lacking, Title VII plaintiffs may instead turn to the burden-shifting framework set out in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Under the well-trod McDonnell Douglas framework, a plaintiff first must make out a prima facie case of discrimination that “in effect creates a presumption that the employer unlawfully discriminated against the employee.” Burdine, 450 U.S. at 254, 101 S.Ct. at 1094. In race-discrimination cases, a plaintiff makes out a prima facie case when he shows by a preponderance of the evidence (1) that he is a member of a protected racial class, (2) that he was qualified for the position, (3) that he experienced an adverse employment action, and (4) that he was replaced by someone outside of his protected class or received less favorable treatment than a similarly" }, { "docid": "11296782", "title": "", "text": "“We review de novo a district court’s grant of summary judgment. Summary judgment is appropriate when, after construing the record in the light most favorable to the nonmoving party, we conclude that no reasonable jury could rule in favor of the nonmoving party.” Bagwe v. Sedgwick Claims Mgmt. Servs., Inc., 811 F.3d 866, 879 (7th Cir. 2016) (citation omitted). After the district court had issued its decision in this case and after the case was briefed on appeal, we decided Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016). Ortiz explicitly instructed district courts to “stop separating ‘direct’ from ‘indirect’ evidence and proceeding as if they were subject to different legal standards.” Id. at 765. Instead, the test “is simply whether the evidence would permit a reasonable factfinder to conclude that the plaintiffs race, ethnicity, sex, religion, or other proscribed factor caused the discharge or other adverse employment action.” Id. Ortiz, however, did not alter “[t]he burden-shifting framework created by McDonnell Douglas Corp v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” Id. at 766 (parallel citations omitted). As we have explained, both before and after Ortiz, McDonnell Douglas is a means of organizing, presenting, and assessing circumstantial evidence in frequently recurring factual patterns found in discrimination cases. See, e.g., Volling v. Kurtz Paramedic Servs., Inc., 840 F.3d 378, 383 (7th Cir. 2016) (observing that a “prima facie case in Title VII litigation ... refers to a common, but not exclusive, method of establishing a triable issue of intentional discrimination” (emphasis added) (internal quotation marks omitted)); Morgan v. SVT, LLC, 724 F.3d 990, 997 (7th Cir. 2013) (explaining that “the original purpose of McDonnell Douglas ... was to outline a series of steps that, if satisfied, would support a plaintiffs right to reach a trier of fact”). As Ortiz and our other case law make clear, however, McDonnell Douglas is not the only way to assess circumstantial evidence of discrimination. In adjudicating a summary judgment motion, the question remains: has the non-moving party produced sufficient evidence to support a jury verdict of intentional discrimination? Morgan," }, { "docid": "23362917", "title": "", "text": "own. In December of 1996, Godfredson filed suit in the United States District Court for the Northern District of Ohio, alleging (1) age discrimination under the Age Discrimination in Employment Act (ADEA), 29 U.S.G. §§ 621-634, (2) wrongful discharge in violation of Ohio’s public policy, (3) the intentional infliction of emotional distress, and (4) promissory estoppel. The district court, after holding that Godfredson had failed to make out a prima facie case on any of these claims, granted summary judgment in favor of Hess & Clark. II. ANALYSIS A. Standard of review We review de novo the district court’s grant of summary judgment. See Smith v. Ameritech, 129 F.3d 857, 863 (6th Cir. 1997). Summary judgment is appropriate when there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c). In deciding a motion for summary judgment, the court must view the evidence and draw all reasonable inferences in favor of the non-moving party. See Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The judge is not “to weigh the evidence and determine the truth of the matter but 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). A genuine issue for trial is presented when there is sufficient “evidence on which the jury could reasonably find for the plaintiff.” Id. at 252, 106 S.Ct. 2505. B. Age discrimination Claims under the ADEA are generally analyzed within the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (explaining the burden-shifting format). See O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 310-13, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996) (modifying the McDonnell Douglas framework in ADEA cases). Under the modified McDonnell Douglas framework, a plaintiff must first establish a prima facie case by showing that (1) he was a member of the" }, { "docid": "22908742", "title": "", "text": "on her religious discrimination, racial discrimination, and retaliation claims. II This court reviews the district court’s grant of summary judgment de novo, using the same standards applied by the district court. Byers v. City of Albuquerque, 150 F.3d 1271, 1274 (10th Cir.1998). The evidence and reasonable inferences drawn from the evidence are viewed in the light most favorable to the nonmov-ing party. Id. Summary judgment is appropriate only where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). Mere allegations, however, are insufficient to survive a motion for summary judgment. Dep’t of Commerce v. United States House of Representatives, 525 U.S. 316, 329, 119 S.Ct. 765, 142 L.Ed.2d 797 (1999). “[W]e may affirm the district court for any reason supported by the record.” Amro v. The Boeing Co., 232 F.3d 790, 796 (10th Cir.2000). A Title VII forbids retaliation against an employee because she has “opposed” any practice made unlawful by Title VII, or because she has “participated ... in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). Where there is no direct evidence of retaliation, we analyze a retaliation claim under the McDonnell Douglas burden-shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Jeffries v. State of Kansas, 147 F.3d 1220, 1231 (10th Cir.1998) (applying the McDonnell Douglas framework to a claim of retaliation). Following this framework, an employee must first present a prima facie case of retaliation, which then shifts the burden to the employer to produce a legitimate, nondiscriminatory justification for taking the disputed employment action. Jones v. Barnhart, 349 F.3d 1260, 1266 (10th Cir.2003). If the employer provides a legitimate, non-discriminatory justification for the action, the burden shifts back to the employee to provide evidence showing that the employer’s proffered reason is a pretext for discrimination. Id. An employee may demonstrate pretext by showing the employer’s proffered" }, { "docid": "5922984", "title": "", "text": "as a camera operator were in retaliation for her filing complaints against KARK-TV and amounted to a constructive discharge. II. We review de novo the district court’s grant of summary judgment. Pope v. ESA Services, Inc., 406 F.3d 1001, 1006 (8th Cir.2005). Summary judgment is appropriate if there is “no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “The burden of demonstrating that there are no genuine issues of material fact rests on the moving party.” Winthrop Resources Corp. v. Eaton Hydraulics, Inc., 361 F.3d 465, 468 (8th Cir.2004). We review the evidence and the inferences that reasonably may be drawn from the evidence in “the light most favorable to the nonmoving party.” Gilmore v. AT & T, 319 F.3d 1042, 1046 (8th Cir.2003). We analyze Title VII disparate treatment claims, § 1981 claims, and ACRA claims in the same manner. Henderson v. Simmons Foods, Inc., 217 F.3d 612, 615 n. 3 (8th Cir.2000) (noting that claims premised under the ACRA are analyzed in the same manner as Title VII claims); Kim v. Nash Finch Co., 123 F.3d 1046, 1056 (8th Cir.1997) (noting that the McDonnell Douglas analysis is applicable to Title YII disparate treatment and § 1981 claims). We employ the familiar McDonnell Douglas burden-shifting framework to conduct our analysis. Turner v. Honeywell Fed. Mfg. & Techs., LLC, 336 F.3d 716, 720 (8th Cir.2003) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). “Under the McDonnell Douglas framework, a presumption of discrimination is created when the plaintiff meets [her] burden of establishing a prima facie case of employment discrimination. A minimal evidentiary showing will satisfy this burden of production.” Pope, 406 F.3d at 1006-07 (citations omitted). Once a plaintiff successfully establishes a prima facie case, the burden shifts to the employer to articulate “a legitimate, non-discriminatory reason for its adverse employment action.” Williams v. Ford Motor Co., 14 F.3d 1305, 1309 (8th Cir.1994). If the employer meets its burden, “the presumption of discrimination disappears, requiring the" }, { "docid": "5357838", "title": "", "text": "Review We review de novo a district court’s grant of summary judgment. Ozlowski v. Henderson, 237 F.3d 837, 839 (7th Cir.2001) (quoting Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 692 (7th Cir.1998)). Summary judgment is properly granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When determining whether a genuine issue of material fact exists, we consider evidence in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Material facts are facts that “might affect the outcome of the suit” under the applicable substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute over material facts is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. B. Disparate Treatment Title VII prohibits employers from discriminating against employees on the basis of sex or gender. 42 U.S.C. § 2000e-2(a)(l). Claims of discrimination under Title VII for disparate treatment can be proven either through direct or indirect evidence. O’Regan v. Arbitration Forums, Inc., 246 F.3d 975, 983 (7th Cir.2001). Given that Dr. Farrell does not provide any direct evidence of discrimination on the basis of gender, she must proceed under the McDonnell Douglas indirect burden-shifting method. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); O’Neal v. City of Chicago, 392 F.3d 909, 911 (7th Cir.2004). Under the McDonnell Douglas scheme, the plaintiff bears the initial burden of establishing a prima facie case. Id. at 802, 93 S.Ct. 1817. To state a prima facie case of “disparate treatment” gender discrimination under Title VII, a female plaintiff must show that she: (1) is a member" }, { "docid": "985737", "title": "", "text": "first complaint in the district court on November 15, 2011, which was amended a number of times thereafter. The operative complaint contained one count of race discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1); and, one count of a violation of Golla’s Equal Protection and First Amendment rights under 42 U.S.C. § 1983. The district court dismissed the § 1983 count and allowed the Title VII count to proceed. On June 18, 2015, the district court granted summary judgment in favor of Defendants. The court found no direct evidence of reverse racial discrimination that resulted in the pay disparity. The court also found that Golla had failed to establish’ a prima facie case of reverse racial discrimination under the indirect method of proof, a modified version of a framework first established in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Mills v. Health Care Serv. Corp., 171 F.3d 450, 456-57 (7th Cir. 1999). II. DISCUSSION We review a district court’s grant of summary judgment de novo. Cole v. Bd. of Trs. of N. Ill. Univ., 838 F.3d 888, 895 (7th Cir. 2016). The question on a motion for summary judgment is whether the moving party has shown there is “no genuine dispute as to any material fact,” and is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56(a). We construe all factual disputes and draw all reasonable inferences in favor of the non-moving party. Cole, 838 F.3d at 895. Title VII prohibits an employer from discriminating against an employee on the basis of race with respect to their compensation. 42 U.S.C. § 2000e-2(a)(l). The district court analyzed Golla’s race discrimination claim under both the “direct” and “indirect” methods of proof. See Golla v. Chief Judge of Cook Cty., No. 11 C 8149, 2015 WL 3814650, at *3-6 (N.D. Ill. June 18, 2015). However, after the district court had granted summary judgment, we held that the “direct” and “indirect” methods should no longer be treated as distinct legal standards. Ortiz v." }, { "docid": "3838400", "title": "", "text": "Mixed denied his petition. Johnson filed a charge of discrimination with the Nebraska Equal Opportunity Commission (“NEOC”), which ultimately notified him of his right to sue under Title VII. Johnson then filed suit on October 10, 2003, alleging that the termination of his employment violated the statute’s prohibition on race discrimination. The district court granted Ready Mixed's motion for summary judgment, reasoning that although Johnson had stated a prima facie case of discrimination, he had not demonstrated a genuine dispute for trial over whether Ready Mixed's proffered reason for dismissing him-his dishonesty regarding the acid damage to his truck was merely pretext for race discrimination. The district court also refused to draw a negative inference from Ready Mixed's failute to produce photographs of the damage to Johnson's truck. II. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). We review a district court’s grant of summary judgment de novo, drawing all reasonable inferences, without resort to speculation, in favor of the non-moving party. See Hitt v. Harsco Corp., 356 F.3d 920, 923-24 (8th Cir.2004). Title VII of the Civil Rights Act of 1964 makes it an unlawful employment practice for an employer to “discharge any individual ... because of such individual’s race, color, religion, or national origin.” 42 U.S.C. § 2000e-2(a). The parties agree that the burden-shifting framework promulgated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), should be applied to determine whether Ready Mixed was entitled to summary judgment. Under the McDonnell Douglas framework, a plaintiff must establish a prima facie case by showing that he (1) is a member of a protected class, (2) was qualified for his position, and (3) suffered an adverse employment action under circumstances permitting an inference that the action was the result of unlawful discrimination. See Habib v. NationsBank, 279 F.3d 563, 566 (8th Cir.2001). The burden of production then shifts to the employer to articulate a legitimate, non-discriminatory reason for firing the plaintiff. Id. If" }, { "docid": "18968396", "title": "", "text": "Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We review de novo a magistrate judge’s summary-judgment decisions, drawing all reasonable inferences in the non-moving party’s favor. Fox v. Transam Leasing, Inc., 839 F.3d 1209, 1213 (10th Cir. 2016) (treating cross-motions for summary judgment separately and viewing the evidence in the light most favorable to each non-moving party). A. Title VII and Equal Protection Discrimination Claims. In McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court set forth a three-part burden-shifting framework to analyze circumstantial-evidence Title VII discrimination claims. The McDonnell Douglas framework applies as well to § 1983 claims based on allegations of discrimination under the Equal Protection Clause. English v. Colo. Dep’t of Corrs., 248 F.3d 1002, 1007 (10th Cir. 2001). Under this framework, a plaintiff must first establish a pri-ma facie case of discrimination by demonstrating that he is a member of a protected class and suffered an adverse employment action under circumstances giving rise to an inference of discrimination. DePaula v. Easter Seals El Mirador, 859 F.3d 957, 970 (10th Cir. 2017). In a reverse-gender-discrimination case, a plaintiff “must, in lieu of showing that he belongs to a protected group, establish background circumstances that support an inference that the defendant is one of those unusual employers who discriminates against the majority.” Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1201 (10th Cir. 2006) (internal quotation marks omitted). If the plaintiff establishes a prima facie case of discrimination, the defendant must then articulate a legitimate, nondiscriminatory reason for the adverse employment action. DePaula, 859 F.3d at 970. This circuit has held that “[t]he defendant’s burden is exceedingly light, as its stated reasons need only be legitimate and nondiscriminatory on their face.” Id. (internal quotation marks and citation omitted). If the defendant carries this burden, the burden shifts back to the plaintiff to demonstrate by a" }, { "docid": "22106040", "title": "", "text": "to question whether AISS’s decision was correct, there was no dispute as to whether AISS’s proffered reasons were sincerely held. STANDAED OF REVIEW We review de novo a district court’s grant of summary judgment, viewing all the evidence, and drawing all reasonable inferences, in favor of the non-moving party. Hulsey v. Pride Restaurants, LLC, 367 F.3d 1238, 1243 (11th Cir.2004). We will affirm the grant of summary judgment only if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Fed. R.CivJP. 56(c). DISCUSSION Vessels’ disparate treatment claims, brought under Title VII, § 1981, and § 1983, all require proof of discriminatory intent. As Vessels attempts to prove discriminatory intent by circumstantial evidence, his claims are subject to the McDonnell Douglas methods of proof. Richardson v. Leeds Police Dep’t, 71 F.3d 801, 805 (11th Cir.1995); Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir.1998). Under the familiar McDonnell Douglas framework, the plaintiff must first create an inference of discrimination through his prima facie case. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).. Once the plaintiff has made out the elements of the prima facie case, the burden shifts to the employer to articulate a non-discriminatory basis for its employment action. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If the employer meets this burden, the inference of discrimination drops out of the case entirely, and the plaintiff has the opportunity to show by a preponderance of the evidence that the proffered reasons were pretextual. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Where the plaintiff succeeds in discrediting the employer’s proffered reasons, the trier of fact may conclude that the employer intentionally discriminated. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). VESSELS’ PRIMA FACIE CASE In order to establish a prima facie case, and thus raise an inference of" }, { "docid": "14312823", "title": "", "text": "OKI Systems, 115 F.3d 477, 481 (7th Cir. 1997) (district court did not abuse discretion by overlooking moving defendant’s technical failure to comply with local summary judgment rule where opposing party was not prejudiced). Title VII prohibits an employer from discharging an employee because of that person’s race. See 42 U.S.C. § 2000e-2(a)(1). A plaintiff may prove race discrimination either -directly -or indirectly, and with a combination of direct and circumstantial evidence. The direct method requires the plaintiff to set forth “sufficient evidence, either direct or , circumstantial, that the employer’s discriminatory animus motivated an adverse employment action.” Coleman v. Donahoe, 667 F.3d 835, 845 (7th Cir. 2012). The indirect method allows a plaintiff to prove .discrimination by using the burden-shifting approach articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Coleman, 667 F.3d at 845. In Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016), we clarified that the “direct” and “indirect” methods are not subject to different legal standards. Courts should not sort evidence of discrimination “into different piles, labeled ‘direct’ and ‘indirect,’ that are evaluated- differently.” Id. at 766. Instead, there is a single inquiry: it is “simply whether the evidence would permit a reasonable factfinder to conclude that the plaintiffs race ... caused the discharge.” Id. at 765. Our decision in Ortiz did not alter “McDonnell Douglas or any other burden-shifting framework, no matter what it is called as a shorthand.” Id. at 766. The McDonnell Douglas burden-shifting framework is designed to “sharpen the inquiry into the elusive factual question'of intentional discrimination.” Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 255 n.8, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The plaintiff carries the initial burden of establishing a prima facie- case of discrimination, which can be accomplished by setting forth evidence that: “(1) she is a member of a protected class, (2) her job performance met [the employer’s] legitimate expectations, (3) she suffered an adverse employment action, and (4) another similarly situated individual who was not in the protected class was treated" }, { "docid": "22914116", "title": "", "text": "to follow, but because [Mr. Young] could not have reasonably relied on the statement [allegedly made during] training that the only terminable offense was sleeping on the job.” Id. at 276. II. We review the district court’s grant of summary judgment de novo. See Stover v. Martinez, 382 F.3d 1064, 1070 (10th Cir.2004). Summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In conducting our analysis, we view all of the facts.in the light most favorable to the non-movant and draw all reasonable inferences from the record in favor of the non-moving party. See Stover, 382 F.3d at 1070. A. Where, as here, a Title VII plaintiff relies on indirect or circumstantial evidence to show discrimination, we examine the claim under the familiar burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1225 (10th Cir.2000). Under McDonnell Douglas, the plaintiff carries the initial burden of establishing a prima facie case of racial discrimination. See Kendrick, 220 F.3d at 1226 (discussing McDonnell Douglas, 411 U.S. at 802-04, 93 S.Ct. 1817). Once the plaintiff establishes a prima facie case, the burden shifts to the employer to articulate some legitimate, non-discriminatory reason for the adverse employment action. Id. If the defendant makes this showing, the burden then shifts back to the plaintiff to show that the defendant’s proffered justification is pretextual. Id. The parties agree that Mr. Young has made out a prima facie case of race discrimination and that Dillon has put forth a legitimate, non-discriminatory reason for Mr. Young’s termination. See Appellant’s Br. at 25-29; Appellee’s Br. at 22-23. Thus, all that remains before us is to decide whether a genuine issue of material fact exists as to whether Dillon’s proffered reason for discharging Mr. Young was pre-textual. That is" } ]

[ { "docid": "7979597", "title": "", "text": "PER CURIAM. This is an appeal from a judgment on a policy of war risk insurance which lapsed for nonpayment of premiums in the year 1919. Insured died of tuberculosis in the year 1925. The only question is whether insured was totally and permanently disabled at the time of the lapse of the policy, and the majority of the court are of opinion that, under the principles laid down in U. S. v. Diehl (C. C. A. 4th) 62 F.(2d) 343, and Eggen v. U. S. (C. C. A. 8th) 58 F.(2d) 616, 620, the evidence is not sufficient to sustain the conclusion that he was disabled at that time. We think that there is evidence that insured then had incipient tuberculosis, that the disease did not become arrested, and that it later caused permanent disability and finally resulted in death; but there is no evidence that the conditions which existed during the life of the policy, even if the disability be considered total at that time, made it reasonably certain that this total disability would continue throughout the lifetime of the insured. As was well said in the Eggen Case, supra: “Courts recognize the fact that tuberculosis in its incipient stage is usually not an incurable malady. See Nicolay v. United States [(C. C. A.) 51 F.(2d) 170], supra; Hirt v. United States [(C. C. A.) 56 F.(2d) 80], supra. A finding that the insured was permanently disabled on October 1, 1919, or prior thereto, would not only be without substantial support in the evidence, but would necessarily be based solely upon speculation and conjecture. No one could determine from the evidence whether there were, during the life of the policy, conditions not disclosed which then placed the insured in the class of incipient tubereulars who cannot be cured, or whether, subsequent to lapse, such conditions developed during the natural progress of the disease, or because of the failure of the insured to take treatment, or as the combined result of both the disease and such failure. The appellant calls attention to the fact that there was nothing in" } ]

[ { "docid": "22918550", "title": "", "text": "insured are considered. But we cannot believe that liability upon these contracts of insurance should he determined by the conduct of the insured after the policy has lapsed, nor by economic circumstances which may influence that conduct. We can find no support, in, this record, for a finding that the tuberculosis with which insured was afflicted had progressed to the incurable stage when his policy lapsed. * * * ” Likewise, in this ease, the record, in our judgment, does not justify a finding that in May, 19.19, the total disability, due to incipient tuberculosis, was reasonably certain to he permanent that is, to continue for appellant’s life; his own testimony, as well as the entire record, left the question of whether or not his disease was then incurable entirely in the realm of speculation. See, too, Eggen v. United States, 58 F.(2d) 616 (C. C. A. 8, 1932); United States v. Stack, 62 F.(2d) 1056 (C. C. A. 4, 1933); Walters v. United States, 63 F.(2d) 299 (C. C. A. 5, 1933); Wise v. United States, 63 F.(2d) 307 (C. C. A. 5, 1933). Judgment affirmed. SAWTELLE, Circuit Judge (dissenting). T think there was substantial evidence tending to show total and permanent disability on May 31, 1919, when appellant’s policy lapsed by reason of his discontinuance of the payment of premiums, and that the trial court erred in not submitting the ease to the jury. The fact, if it be a fact, that appellant worked when ho should not have done so, or that he did not take proper rest and care, has little or no hearing upon the question of total and permanent disability on the above date, and consequently upon appellant’s right to recover upon the policy." }, { "docid": "9829602", "title": "", "text": "five years were not good, and although the mental and physical effects of his occupation vary with different types of tuberculosis “generally speaking it is figured that exercise and work aggravates existing tuberculosis.” He also testified with reference to the diagnosis of April 19, 1928, that the National Tuberculosis Association standards do not recognize the diagnosis of “healed tuberculosis”. And further, that to secure a classification under the National Tuberculosis Association of arrested tuberculosis there must be x-rays and if it shows a healing tuberculosis, the sputum must be negative of bacilli, and during the last six months under observation he must be taking exercise equivalent to two hours walking. He further testifies that the diagnosis of “healed tuberculosis”, if it was intended to indicate “apparently cured”, could not be a correct diagnosis because two years later the appellant showed active tuberculosis. It has been frequently held by the court and was held by this court in Falbo v. United States, 9 Cir., 64 F.2d 948, affirmed, 291 U.S. 646, 54 S.Ct. 456, 78 L.Ed. 1042, that tuberculosis, active or chronic, does not, per se, constitute total and permanent disability. See, Crews v. U. S., 102 F.2d 485. While the medical expert did testify that appellant’s chances of recovery were not good in 1926, he did not testify that his disease was incurable at the time the policy expired in 1929. The court was justified in accepting the diagnosis of healed tuberculosis in 1928, notwithstanding developments subsequent to the lapse of the policy. See, United States v. Watson, 4 Cir., 107 F.2d 370, 371. Although the appellant has suffered much during the period of twenty years because of his physical difficulties and impaired health, he has nevertheless made creditable and effective efforts to overcome his difficulties. Without detailing his work record it is sufficient to say he became engaged in the real estate and insurance business in South Gate, Los Angeles, as early as the fall of 1923, and that he has continued therein up to the time of trial. He testified that much of his work was done by" }, { "docid": "22918549", "title": "", "text": "character of the evidence on this material point. “Q. Suppose at that time, hack in July, 1919, the Fourth, that he had taken proper treatment, hadn’t worked, and followed the proper course under medical direction, is it reasonably likely that ho would have recovered? A. He may have. “Q. Is it reasonably likely he would not have? A. Well, he may have recovered and he might not have.” Wo concur in and deem completely applicable here the views so well expressed by Judge McDermott in the Bentfrow Case: “Such eases as these, which are as frequent as they are unfortunate, make a strong appeal to the sympathies. An incipient tubercular stands at a crossroads: If he continues his ordinary activities, his condition is a hopeless one. On the other hand, if he will follow a program of complete rest and wholesome nourishment for an indicated period, the chances are strongly in favor of an arrested condition and a substantial cure. Many times the choice is a hard one, particularly when the economic circumstances of the insured are considered. But we cannot believe that liability upon these contracts of insurance should he determined by the conduct of the insured after the policy has lapsed, nor by economic circumstances which may influence that conduct. We can find no support, in, this record, for a finding that the tuberculosis with which insured was afflicted had progressed to the incurable stage when his policy lapsed. * * * ” Likewise, in this ease, the record, in our judgment, does not justify a finding that in May, 19.19, the total disability, due to incipient tuberculosis, was reasonably certain to he permanent that is, to continue for appellant’s life; his own testimony, as well as the entire record, left the question of whether or not his disease was then incurable entirely in the realm of speculation. See, too, Eggen v. United States, 58 F.(2d) 616 (C. C. A. 8, 1932); United States v. Stack, 62 F.(2d) 1056 (C. C. A. 4, 1933); Walters v. United States, 63 F.(2d) 299 (C. C. A. 5, 1933); Wise v." }, { "docid": "13234611", "title": "", "text": "plaintiff to prove that the disability was permanent, that is, 'founded upon conditions which render it reasonably certain that it will continue throughout the life of the person suffering from it.’ This burden is not carried by leaving the matter in the realm of speculation. The proof in this case is that his disability in 1919 was not permanent; * * * it is a matter of common knowledge, as this court took occasion to say in Nicolay v. United States, supra, that many incipient tubereulars respond readily to the simple treatment of rest and nourishment, and are thereafter able to follow many gainful occupations. “Such eases as these, which are as frequent as they are unfortunate, make a strong appeal to the sympathies. An incipient tubercular stands at a crossroads: If he continues his ordinary activities, his condition is a hopeless one. On the other hand, if he will follow a program of complete rest and wholesome nourishment for an indicated period, the chances are strongly in favor of an arrested condition and a substantial cure.” In United States v. Thomas, 64 F.(2d) 245, 246, we said: “It has been held, by this and other courts, that the plaintiff must establish, by substantial proof, that the insured was to>tally and permanently disabled while the policy was in force; that proof of minimal or incipient tuberculosis during that period, without more, is not sufficient to carry the case to the jury.” In United States v. Harrell, 66 F.(2d) 231, 233, we said: “It has been held by this and other courts that the plaintiff must establish, by substantial proof, that the insured was totally and permanently disabled while the policy was in force, and that proof of minimal or incipient tuberculosis during that period, without more, is not sufficient. (Cases cited.) It is evident that Harrell was suffering from minimal or incipient tuberculosis at the time of his discharge from the army and before his policy had lapsed, but there is no evidence that this condition could not_ have been arrested with proper care and rest.” See, also, Eggen v." }, { "docid": "3695828", "title": "", "text": "year after his discharge from the army would tend to prove that he was not disabled, even partially, when discharged. After a partial disability, in the form of incipient tuberculosis, was proven there is no evidence that such disability could not have been removed by proper treatment of the disease. As was said by this court in the case of United States v. Stack, 62 F.(2d) 1056: “ ‘Courts recognize the fact that tuberculosis in its incipient stage is usually not an incurable malady. See Nicolay v. United States (C. C. A.) 51 F.(2d) 170, supra; Hirt v. United States (C. C. A.) 56 F.(2d) 80, supra. A finding that the insured was permanently disabled on October 1, 1919, or prior thereto, would not only be without substan tial support in the evidence, but would necessarily be based solely upon speculation and conjecture. * * In the case of Falbo v. United States (C. C. A.) 64 F.(2d) 948, 949, affirmed 291 U. S. 646, 54 S. Ct. 456, 78 L. Ed. 1042, the court said: “While, on this evidence, a finding of total disability in May, 1919, and of permanent disability at a much later period, would-be justified, we concur in the judgment of the District Judge that it fails to show a condition of permanent disability in May, 1919, a disability then ‘reasonably certain to be permanent during lifetime/ United States v. McCreary, 61 F.(2d) 804, 808 (C. C. A. 9, 1933). The burden of proof is on the plaintiff; ‘it is not carried by leaving the matter in the realm of speculation/ United States v. Rentfrow, 60 F.(2d) 488, 489 (C. C. A. 10, 1932).” The action of the deceased in leaving the hospital, where he was sent for treatment,' without authority of the officials of the hospital, and his continued refusal to accept hospitalization, would preclude recovery in this case, even if it were found that the proof of disability’ was sufficient otherwise. As was said by us in United States v. Lancaster, 70 F. (2d) 515, 516: “It is. manifestly unfair to the government, when" }, { "docid": "22183931", "title": "", "text": "the chances for the recovery of a man in his condition — assuming it to be as described by the appellant’s evidence — prior to the lapse of the policy, were at least 8 to 2; and courts reeognize the fact that tuberculosis in its incipient stage is usually not an incurable malady. See Nicolay v. United States, supra; Hirt v. United States, supra. A finding that the insured was permanently disabled on October 1,1919, or prior thereto, would not only be without substantial support in the evidence, but would necessarily be based solely upon speculation and conjecture. No one could determine from the evidence whether there were, during the life of the policy, conditions not disclosed which then placed the insured in the class of incipient tuberculars who cannot be cured, or whether, subsequent to lapse, such conditions developed during the natural progress of the disease, or because of the failure of the insured to take treatment, or as the combined result of both the disease and such failure. The appellant calls attention to the fact that there was nothing in the contract requiring the insured to take treatment. That is true, but an insured may not convert a total temporary disability existing before lapse into a total permanent disability by neglecting his condition after lapse, and the failure to take treatment may destroy whatever probative value death or permanency of disability occurring after lapse would otherwise have. In the case of Gunning v. Cooley, 281 U. S. 90, 94, 50 S. Ct. 231, 233, 74 L. Ed. 720, the Supreme Court said: “Where the evidence upon any issue is all on one side or so overwhelmingly on one side as to leave no room to doubt what the fact is, the court should give a peremptory instruction to the jury. People’s Savings Bank v. Bates, 120 U. S. 556, 562, 7 S. Ct. 679, 30 L. Ed. 754; Southern Pacific Company v. Pool, 160 U. S. 438, 440, 16 S. Ct. 338, 40 L. Ed. 485. When a plaintiff produces evidence that is consistent with an hypothesis that" }, { "docid": "9927728", "title": "", "text": "policy is not of itself sufficient to defeat his claim of total permanent disability. He may have worked when really unable and at the risk of endangering his health or life.” Lumbra v. United States, supra, 290 U.S. at page 560, 54 S.Ct. at page 276, 78 L.Ed. 492. See United States v. Spaulding, supra, 293 U.S. at page 505, 55 S.Ct. 273, 79 L.Ed. 617; United States v. Fairbanks, 9 Cir., 89 F.2d 949, 953. This court knows that tuberculosis is a progressive disease; incipient, it oftens responds to proper treatment, which arrests the progress of the disease and leaves the victim with many years of useful life, under favorable conditions. On the other hand, many cases are incurable from the start, resisting the most enlightened medical treatment' Here we are confronted with a case where, on a date when the policy was in force, the plaintiff was suffering from pulmonary tuberculosis, active, chronic, “on the borderline between moderately advanced and far advanced.” It had passed the incipient stage. In these circumstances any work performed would be at the risk of endangering health or life, or both. On the day following this diagnosis the plaintiff left his employment and rested for three months; he returned to work under necessity. Plaintiff’s medical history proves that he was unable to work without material injury to his health or risk of endangering his life. The work record, therefore, does not conclusively refute his claim of total permanent disability. Such a deduction finds support in numerous decisions. This court said in United States v. Lawson, 9 Cir., 50 F.2d 646, 651, a tuberculosis case (with complications): “It might be argued that the fact that plaintiff managed to hold several positions for the greater part of the time during the years in question, and actually engaged in work, proves that he was able to work and not totally and permanently disabled. But this does not necessarily follow. It is a matter of common knowledge that many men work in the stress of circumstances when they should not work at all. When they do that" }, { "docid": "7850324", "title": "", "text": "for the Southern Pacific Railroad Company for an average monthly wage of $125, and that from January 0 to August 1, 1921, he was a package checker for the Kansas City Southern Railway Company, earning on an average more than a hundred dollars a month. It is doubtful whether, in view of the record of his employment, a conclusion that, before his policy lapsed, he had an impairment which prevented him from following continuously any substantially gainful occupation, could be justified; but, assuming that there was substantial evidence of total disability on the theory that, while he worked, he was in reality unable to work, the evidence was insufficient to justify a conclusion that the disability was, prior to the lapse of his insurance, based upon conditions which made it reasonably certain at that time that it would continue throughout his life. The following language used in the ease of Eggen v. United States (C. C. A. 8) 58 F.(2d) 616, 620, is pertinent: “No one could determine from the evidence whether there were, during the life of the policy, conditions not disclosed which then placed the insured in the class of incipient tubereulars who cannot be cured, or whether, subsequent to lapse, such conditions developed during the natural progress of the disease, or because of the failure of the insured to take treatment, or as the combined result of both the disease and such failure.” See, also, Nicolay v. United States (C. C. A. 10) 51 F.(2d) 170; Hirt v. United States (C. C. A. 10) 56 F.(2d) 80; Roberts v. United States (C. C. A. 10) 57 F.(2d) 514; United States v. Rentfrow (C. C. A. 10) 60 F.(2d) 488; Proechel v. United States (C. C. A. 8) 59 F.(2d) 648. The judgment is reversed, and the case remanded for further proceedings not inconsistent with this opinion." }, { "docid": "13234612", "title": "", "text": "substantial cure.” In United States v. Thomas, 64 F.(2d) 245, 246, we said: “It has been held, by this and other courts, that the plaintiff must establish, by substantial proof, that the insured was to>tally and permanently disabled while the policy was in force; that proof of minimal or incipient tuberculosis during that period, without more, is not sufficient to carry the case to the jury.” In United States v. Harrell, 66 F.(2d) 231, 233, we said: “It has been held by this and other courts that the plaintiff must establish, by substantial proof, that the insured was totally and permanently disabled while the policy was in force, and that proof of minimal or incipient tuberculosis during that period, without more, is not sufficient. (Cases cited.) It is evident that Harrell was suffering from minimal or incipient tuberculosis at the time of his discharge from the army and before his policy had lapsed, but there is no evidence that this condition could not_ have been arrested with proper care and rest.” See, also, Eggen v. United States (C. C. A.) 58 F.(2d) 616; United States v. Clapp (C. C. A.) 63 F.(2d) 793; United States v. Lumbra (C. C. A.) 63 F.(2d) 796; which was affirmed by the United States Supreme. Court in 290 U. S. 551, 54 S. Ct. 272, 276, 78. L. Ed. 492. Falbo v. United States (C. C. A.) 64 F.(2d) 948; United States v. Hairston (C. C. A.) 55 F.(2d) 825. It is to be observed also that eight years elapsed between MeShane’s discharge in 1919 and Ms death in 1927. Presumptively he did not believe himself to he totally and permanently disabled in March, 1919, else he would have sued on the policy. No such claim was made by Mm of the Veterans’ Bureau or its Director. The Supreme Court in the Lum-bra Case said: “And in the absence of clear and satisfactory evidence explaining, excusing, or justifying it, petitioner’s long delay before bringing suit is to be taken as strong evidence that be was not totally and permanently disabled before the policy lapsed.”" }, { "docid": "11914328", "title": "", "text": "the proper treatment and that he should enter a hospital. About two years after his discharge he entered the University Hospital at Oklahoma City for a short time. Soon thereafter,. and in September, 1923, he entered the Veteran’s Hospital at Muskogee, Oklahoma, where he died on April 14, 1924. His death was caused by pulmonary tuberculosis. It is manifest, and the trial court found, that the insured was suffering from pulmonary tuberculosis at the time of his discharge from the military service. The trial court further found that the insured refused to heed the advice of his physician or to receive hospitalization or treatment. It is well established that pulmonary tuberculosis may be the cause of permanent and total disability, but it is not always an incurable disease with proper care and treatment, and it must be conceded that persons afflicted with pulmonary tuberculosis often do regain their health and pursue gainful occupations or they may pursue gainful occupation without impairment of health while afflicted by the disease. The courts have uniformly recognized and applied this rule in the consideration of war risk insurance cases. Falbo v. United States, 9 Cir., 64 F.2d 948; Nicolay v. United States, 10 Cir., 51 F.2d 170; United States v. Rentfrow, 10 Cir., 60 F.2d 488; United States v. McShane, 10 Cir., 70 F.2d 991; Harper v. United States, 10 Cir., 98 F.2d 885; Eggen v. United States, 8 Cir., 58 F.2d 616; United States v. Bryan, 5 Cir., 82 F.2d 784; United States v. Hammond, 5 Cir., 87 F.2d 226; United States v. Walker, 5 Cir., 77 F.2d 415; United States v. Brewer, 5 Cir., 97 F.2d 899; United States v. McRae, 4 Cir., 77 F.2d 88; United States v. Baker, 4 Cir., 73 F.2d 455; Robinson v. United States, 2 Cir., 87 F.2d 343; Mason v. United States, 2 Cir., 63 F.2d 791; United States v. Middleton, 6 Cir., 81 F.2d 205. It may be assumed that the evidence is entirely sufficient in this case to support a judgment of total permanent disability while the policy was in full force and effect" }, { "docid": "11914329", "title": "", "text": "this rule in the consideration of war risk insurance cases. Falbo v. United States, 9 Cir., 64 F.2d 948; Nicolay v. United States, 10 Cir., 51 F.2d 170; United States v. Rentfrow, 10 Cir., 60 F.2d 488; United States v. McShane, 10 Cir., 70 F.2d 991; Harper v. United States, 10 Cir., 98 F.2d 885; Eggen v. United States, 8 Cir., 58 F.2d 616; United States v. Bryan, 5 Cir., 82 F.2d 784; United States v. Hammond, 5 Cir., 87 F.2d 226; United States v. Walker, 5 Cir., 77 F.2d 415; United States v. Brewer, 5 Cir., 97 F.2d 899; United States v. McRae, 4 Cir., 77 F.2d 88; United States v. Baker, 4 Cir., 73 F.2d 455; Robinson v. United States, 2 Cir., 87 F.2d 343; Mason v. United States, 2 Cir., 63 F.2d 791; United States v. Middleton, 6 Cir., 81 F.2d 205. It may be assumed that the evidence is entirely sufficient in this case to support a judgment of total permanent disability while the policy was in full force and effect on April 1, 1919. It is, also, clear that the trial court, as the trier of the facts, was warranted in finding that the insured did not become totally and permanently disabled before April 1, 1919. The findings of the trial court, supported by the record, are based upon his refusal to accept hospitalization and treatment, and upon his own application for compensation, which he made in May, 1923, wherein he described his disability as tubercular rheumatism, which he stated began in December, 1922. In his application he stated he had worked for numerous parties and was working at that time, naming his employer. Without more, it is clear that the findings of the trial court are supported by substantial evidence and we cannot disturb it. Adams v. United States, supra, and Thatenhorst v. United States, supra. The judgment of the trial court should be, and is affirmed." }, { "docid": "3695827", "title": "", "text": "in March, 1921, July, 1921, August, 1921, and December, 1921, but refused to do so, and died in February, 1923, from pulmonary tuberculosis. A number of lay witnesses testified that, upon Austin’s return from the army, he seemed to be in poor health; that he coughed and had lost weight; other lay witnesses who worked with him after he returned testified that he did his work well and was apparently in good health. The plaintiff was appointed administratrix of the estate of the deceased veteran. The sole question necessary to be considered here is whether the plaintiff, upon whom rests the burden of proof in the case, has shown by proper proof that the deceased was totally and permanently disabled on March 1,-1919. There is no direct proof that the deceased had tuberculosis at the time the policy expired. To hold that he was so afflicted would be, to the highest degree, speculative. The admitted facts in the case tend to rebut any such presumption. The work record of the deceased for more than a year after his discharge from the army would tend to prove that he was not disabled, even partially, when discharged. After a partial disability, in the form of incipient tuberculosis, was proven there is no evidence that such disability could not have been removed by proper treatment of the disease. As was said by this court in the case of United States v. Stack, 62 F.(2d) 1056: “ ‘Courts recognize the fact that tuberculosis in its incipient stage is usually not an incurable malady. See Nicolay v. United States (C. C. A.) 51 F.(2d) 170, supra; Hirt v. United States (C. C. A.) 56 F.(2d) 80, supra. A finding that the insured was permanently disabled on October 1, 1919, or prior thereto, would not only be without substan tial support in the evidence, but would necessarily be based solely upon speculation and conjecture. * * In the case of Falbo v. United States (C. C. A.) 64 F.(2d) 948, 949, affirmed 291 U. S. 646, 54 S. Ct. 456, 78 L. Ed. 1042, the court" }, { "docid": "14289002", "title": "", "text": "plaintiff was totally and permanently disabled while his insurance was in force. In the examination of this question we are not to weigh the evidence and what our verdict would have been as jurymen is immaterial. It is likewise of no importance that we may be of the opinion that the evidence preponderates in favor of the defendant, for the reason that the responsibility of weighing the facts lies with the jury. United States v. Dudley, 9 Cir., 64 F.2d 743. In our case we must assume as established all the facts that the evidence supporting plaintiff’s claim reasonably tends to prove, and there should be drawn in his favor all the inferences fairly deducible from such facts. Lumbra v. United States, 290 U.S. 551, 54 S.Ct. 272, 78 L.Ed. 492, and Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720. In an action of this character the plaintiff must show (1) that before the policy lapsed he was totally disabled, i. e., that his disability was of such a character that he was incapable of pursuing with reasonable regularity any substantially gainful occupation; and (2) that this disability was of a permanent character, i. e., that it was based upon conditions which rendered it reasonably certain at the time that it would continue throughout the life of the insured. United States v. Diehl, 4 Cir., 62 F.2d 343 and Eggen v. United States, 8 Cir., 58 F.2d 616. The evidence introduced and relied upon by plaintiff tended to prove that at the date of his enlistment he was 24 years of age, in good health, and had been employed as a railroad brakeman. Upon enlistment ■ he was sent to Brownsville, Texas and there engaged in border patrol work. While at Brownsville, undergoing gas training in a gas chamber in June, 1918, he was gassed, compelled to leave the chamber and thereafter suffered from pain in his lungs. He was confined in an army hospital, then ordered to the United Fort Bayard, New Mexico, where he remained for 18 months until December 12, 1919, on" }, { "docid": "7766404", "title": "", "text": "of total and permanent disability existing during the period of insurance protection. Eggen v. United States, 8 Cir., 58 F.2d 616; Wise v. United States, 5 Cir., 63 F.2d 307. It is not enough to establish that he was partially permanently disabled or temporarily totally disabled while the policy was in force. Hoskins v. United States, 5 Cir., 100 F.2d 343; Miller v. United States, 294 U.S. 435, 440, 55 S.Ct. 440, 442, 79 L.Ed. 977. The appellant cánnot recover if total permanent disability occurred subsequent to the lapse of the policy on October 2, 1919, and this is true, even though it be shown that the total permanent disability was caused by conditions which arose or existed while the policy was in full force, and effect. Hoskins v. United States, supra; United States v. Baker et al., 4 Cir., 73 F.2d 455. Clearly if there is any substantial competent evidence to support the finding of the court, the judgment must stand. We. are not warranted in overturning the judg ment of the court in these circumstances unless it is clearly erroneous. Rules of Civil Procedure, 52(a) 28 U.S.C.A. following section 723c. Gray v. United States, 8 Cir., 109 F.2d 728; United States v. Fitzpatrick, 10 Cir., 62 F.2d 562; Storey v. United States, 10 Cir., 60 F.2d 484; United States v. Peet, 10 Cir., 59 F.2d 728; United States v. Phillips, 8 Cir., 44 F.2d 689. The appellant entered the military service as a “fine physical specimen, with muscles ‘like a boxer’.” Soon after entering the service, he was thrown from a caisson into a ditch, which resulted in hospitalization, applications of iodine, and hot applications of towels and packs to his legs, hands and back; apparently fully recovered; went to France; and was quarantined as a meningitis carrier, but did not contract meningitis. While in the service, he complained of pain in his hands, legs and arms; of soft muscles and general weakness. He had some teeth extracted. Witnesses for the government testified that while in the service, the appellant took part in all types of athletics, and" }, { "docid": "11905750", "title": "", "text": "] 928, he was entirely helpless, was fed through a tube, and was blind. He died that year. Doctors Clawson and Anderson testified, in answer to hypothetical questions, that in their opinion the insured was totally and permanently disabled when discharged from the army; Doctor Anderson’s opinion was that his resistance was so lowered by his long-continued exposure and the complication of diseases with which he was afflicted, that his condition was a hopeless one at that time, no matter what care he received. It has been held, by this and other courts, that the plaintiff must establish, by substantial proof, that the insured was totally and permanently disabled while the policy was in force; that proof of minimal or incipient tuberculosis during that period, without more, is not sufficient to carry the ease to the jury. It has likewise been held that the subsequent employment of the insured may be of such a nature and duration as to refute conclusively any claim of such disability. Nicolay v. United States (C. C. A. 10) 51 F.(2d) 170; Hirt v. United States (C. C. A. 10) 56 F.(2d) 80; Roberts v. United States (C. C. A. 10) 57 F.(2d) 514; United States v. Rentfrow (C. C. A. 10) 60 F.(2d) 488; Storey v. United States (C. C. A. 10) 60 F.(2d) 484; United States v. Fitzpatrick (C. C. A. 10) 62 F.(2d) 562; United States v. Peet (C. C. A. 10) 59 F.(2d) 728; Eggen v. United States (C. C. A. 8) 58 F.(2d) 616; United States v. Diehl (C. C. A. 4) 62 F.(2d) 343; United States v. Harth (C. C. A. 8) 61 F.(2d) 541. We adhere to the doctrine of these cases; the government contends that such adherence requires a reversal of the present case. Counsel for appellees have brought to O'Ur attention valuable excerpts from the Report on Tuberculosis made in 1932 by Dr. Arthur Salusbury MaeNulty, Senior Medical Officer for Tuberculosis of the Ministry of Health of London; and from the recent work of Dr. Mauriee Fishberg, Chief of the Tuberculosis Service, Montefiore Hospital, on Pulmonary" }, { "docid": "9927727", "title": "", "text": "v. United States, 290 U.S. 551, 553, 54 S.Ct. 272, 78 L.Ed. 492; Gunning v. Cooley, supra, 281 U.S. at page 94, 50 S.Ct. 231, 74 L.Ed. 720. Here the only difficulty presented is the appellee’s work record. Is this rather extensive work record such a physical'fact as positively contradicts the appellee’s evidence of total permanent disability ? It is a rule of uniform application in the Federal Courts that where testimony is positively contradicted by the physical facts neither the court nor jury can be permitted to give it credence. Deadrich v. United States, supra; United States v. Harth, 8 Cir., 61 F.2d 541, 544; United States v. Kerr, 9 Cir., 61 F.2d 800, 803. Employment may be of such duration and nature that it conclusively refutes any idea that the insured might have been totally permanently disabled prior to and during such employment. Nicolay v. United States, 10 Cir., 51 F.2d 170, 173; United States v. Harth, supra. However, “The' mere fact that one has done some work after the lapse of his policy is not of itself sufficient to defeat his claim of total permanent disability. He may have worked when really unable and at the risk of endangering his health or life.” Lumbra v. United States, supra, 290 U.S. at page 560, 54 S.Ct. at page 276, 78 L.Ed. 492. See United States v. Spaulding, supra, 293 U.S. at page 505, 55 S.Ct. 273, 79 L.Ed. 617; United States v. Fairbanks, 9 Cir., 89 F.2d 949, 953. This court knows that tuberculosis is a progressive disease; incipient, it oftens responds to proper treatment, which arrests the progress of the disease and leaves the victim with many years of useful life, under favorable conditions. On the other hand, many cases are incurable from the start, resisting the most enlightened medical treatment' Here we are confronted with a case where, on a date when the policy was in force, the plaintiff was suffering from pulmonary tuberculosis, active, chronic, “on the borderline between moderately advanced and far advanced.” It had passed the incipient stage. In these circumstances any work" }, { "docid": "22183921", "title": "", "text": "witnesses tended to show that, upon the insured’s return from the army on August 25, 1919, he was thin, pale, and ill, that he coughed and threw up, was short-winded, tired easily, had night sweats, and was unable to work regularly or effectively, and that these conditions continued. He was examined by a doctor in 1925, and was found at that time to have tuberculosis in an advanced stage. He was sent to the Veterans’ Hospital on February 19, 1926, and 'died on March 6, 1926. A policy of war risk insurance was a contract of insurance between the government and the insured. It was not a gratuity nor an arrangement for a pension. The contingencies insured against were death and total permanent disability. If a policy lapsed, for nonpayment of premiums, before death or total permanent disability occurred, there could he no recovery under the policy. If either of the contingencies insured against occurred during the life of the policy, there could he a recovery. Total disability is any impairment of mind or body which renders it impossible for .the insured to engage continuously in any •substantially gainful occupation, and total ■disability is permanent if it is founded upon conditions which make it reasonably certain that it will continue throughout life. A total disability which has not become permanent before the lapse of a policy does not mature it, nor does a permanent disability which has not become total. Some of the recent cases in which these policies and their terms are diseussed are Blair v. United States (C. C. A. 8) 47 F.(2d) 109; McNally v. United States (C. C. A. 8) 52 F.(2d) 440; United States v. Le Due (C. C. A. 8) 48 F. (2d) 789; United States v. Perry (C. C. A. 8) 55 F.(2d) 819; United States v. McGill (C. C. A. 8) 56 F.(2d) 522; United States v. McLaughlin (C. C. A. 8) 53 F.(2d) 450; Green v. United States (C. C. A. 8) 57 F. (2d) 9; Nicolay v. United States (C. C. A. 10) 51 F.(2d) 170; Hirt v. United States" }, { "docid": "7766403", "title": "", "text": "the parties, the court found and concluded that the appellant did not become permanently and totally disabled within the meaning of the contract of insurance on or prior to October 2, 1919. Accordingly the court entered judgment against the appellant, from which he has appealed. The appellant contends that the judgment of the trial court is erroneous because unsupported by any substantial competent testimony. He has assigned some seventy separate items of evidence, the admission, exclusion, or failure to rule upon of which he urges as reversible error. From the whole record it is fairly clear that the appellant was at the time of the trial of the case totally and permanently disabled. He was unable to dress himself, feed himself, or care for his natural needs. His disability is caused by an organic disturbance of his neuro-muscular system, and this condition has progressed from its inception, either before or after his discharge from the Army, until he has reached a state of total disability. It is incumbent upon the appellant to show a condition of total and permanent disability existing during the period of insurance protection. Eggen v. United States, 8 Cir., 58 F.2d 616; Wise v. United States, 5 Cir., 63 F.2d 307. It is not enough to establish that he was partially permanently disabled or temporarily totally disabled while the policy was in force. Hoskins v. United States, 5 Cir., 100 F.2d 343; Miller v. United States, 294 U.S. 435, 440, 55 S.Ct. 440, 442, 79 L.Ed. 977. The appellant cánnot recover if total permanent disability occurred subsequent to the lapse of the policy on October 2, 1919, and this is true, even though it be shown that the total permanent disability was caused by conditions which arose or existed while the policy was in full force, and effect. Hoskins v. United States, supra; United States v. Baker et al., 4 Cir., 73 F.2d 455. Clearly if there is any substantial competent evidence to support the finding of the court, the judgment must stand. We. are not warranted in overturning the judg ment of the court in" }, { "docid": "7850323", "title": "", "text": "v. United States (C. C. A. 9) 41 F.(2d) 663; United States v. Burleyson (C. C. A. 9) 44 F.(2d) 502; United States v. Ranes (C. C. A. 9) 48 F.(2d) 582; United States v. De Armond (C. C. A. 8) 48 F.(2d) 465. The court below should have refused to entertain jurisdiction of this case. 2. In view of this conclusion, it would not be necessary to pass upon tbe second question. However, it has been argued and briefed, and we have examined the record with a view to determining whether there was substantial evidence to support the verdict. It is our opinion that, if the court had had jurisdiction, it should have directed a verdict in favor of the defendant. The policy lapsed August 31, 1919. The insured died April 11, 1922, of pulmonary tuberculosis. There was evidence which might have justified a finding that he had tuberculosis at the time his policy was in force. The evidence shows that from December 4, 1919, to September' 1, 1920, he worked as a towerman for the Southern Pacific Railroad Company for an average monthly wage of $125, and that from January 0 to August 1, 1921, he was a package checker for the Kansas City Southern Railway Company, earning on an average more than a hundred dollars a month. It is doubtful whether, in view of the record of his employment, a conclusion that, before his policy lapsed, he had an impairment which prevented him from following continuously any substantially gainful occupation, could be justified; but, assuming that there was substantial evidence of total disability on the theory that, while he worked, he was in reality unable to work, the evidence was insufficient to justify a conclusion that the disability was, prior to the lapse of his insurance, based upon conditions which made it reasonably certain at that time that it would continue throughout his life. The following language used in the ease of Eggen v. United States (C. C. A. 8) 58 F.(2d) 616, 620, is pertinent: “No one could determine from the evidence whether there were, during" }, { "docid": "22183930", "title": "", "text": "the right of recovery under the policy, which must depend entirely upon the conditions which existed when the policy was alive. In this ease, while the question of the sufficiency of the evidence to establish total disability is not free from doubt, we think it would have justified a finding that the insured was totally disabled as a result of incipient tuberculosis at the time his policy lapsed, and that this disease did not become arrested, and later caused permanent disability and finally death. We think, however, there was no substantial evidence that the conditions which existed while the policy was alive made it reasonably certain that the total disability would last throughout the lifetime of the insured. The medical testimony of the appellant did not establish the existence of such conditions prior to October 1, 1919. The probabilities then were that the insured would recover. He was advised by his doctor, in September, 1919, to take treatment so- that he might be cured. The testimony introduced by the government, and not disputed, indicated that the chances for the recovery of a man in his condition — assuming it to be as described by the appellant’s evidence — prior to the lapse of the policy, were at least 8 to 2; and courts reeognize the fact that tuberculosis in its incipient stage is usually not an incurable malady. See Nicolay v. United States, supra; Hirt v. United States, supra. A finding that the insured was permanently disabled on October 1,1919, or prior thereto, would not only be without substantial support in the evidence, but would necessarily be based solely upon speculation and conjecture. No one could determine from the evidence whether there were, during the life of the policy, conditions not disclosed which then placed the insured in the class of incipient tuberculars who cannot be cured, or whether, subsequent to lapse, such conditions developed during the natural progress of the disease, or because of the failure of the insured to take treatment, or as the combined result of both the disease and such failure. The appellant calls attention to" } ]

[ { "docid": "22212644", "title": "", "text": "motion. 38 C.F.R. § 20.904 (1992). C. Special Provisions i. 38 C.F.R. § 3.103 (1992) Subsection (d) of 38 C.F.R. § 3.103, which is entitled “Procedural due process and appellate rights,” states: (d) Submission of evidence. Any evidence whether documentary, testimonial, or in other form, offered by the claimant in support of a claim and any issue a claimant may raise and any contention or argument a claimant may offer with respect thereto are to be included in the records. This subsection requires that all evidence, issues, contentions, and arguments advanced by a claimant must be “included in the records.” Id. For the provision to have meaningful effect necessitates that there must be reasonable notice of the right to advance, and a reasonable opportunity to so advance, such evidence, issues, contentions, and arguments. ii. Duty to Assist As indicated in part III.A., supra, once a claimant has submitted a well-grounded claim, the Secretary has a duty to “assist such claimant in developing the facts pertinent to the claim.” 38 U.S.C.A. § 5107(a); see 38 C.F.R. § 3.159 (1992); Moore v. Derwinski, 1 Vet.App. 401, 405-06 (1991) (duty to assist includes the providing of complete and thorough medical examinations that address a claimant’s complaints); EF v. Derwinski, 1 Vet.App. 324, 326 (1991) (duty to assist extends to requiring that “the BVA must review all issues which are reasonably raised from a liberal reading of” all documents or oral testimony submitted prior to a BVA decision); Murphy v. Derwinski, 1 Vet.App. at 82 (duty to assist extends to the securing of any relevant military, VA, or other government records or, with appellant’s cooperation, private medical, hospital, employment, or other civilian records). D. The Administrative Procedure Act The history of the applicability of the rulemaking provisions of the Administrative Procedure Act (APA) to the VA is well stated in the Court’s decision in Fugere, 1 Vet.App. at 107-08: By regulation in effect since 1972 the VA, as a matter of policy, has voluntarily embraced the provisions of the APA: It is the policy of the Department of Veterans Affairs to afford the public" } ]

[ { "docid": "11961536", "title": "", "text": "and law presented on the record. See 38 U.S.C. § 7104(d)(1). The statement must be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. See Simon v. Derwinski, 2 Vet.App. 621, 622 (1992); Masors v. Derwinski, 2 Vet.App. 181, 188 (1992); Gilbert v. Derwinski 1 Vet.App. 49, 57 (1990). Moreover, the Board “may consider only independent medical evidence to support [its] findings”. Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991); see Thurber v. Brown, 5 Vet.App. 119, 122 (1993); Hatlestad v. Derwinski, 3 Vet.App. 213, 217 (1992) (Hatlestad II). “If the medical evidence of record is insufficient, or, in the opinion of the BVA, of doubtful weight or credibility, the BVA is always free to supplement the record by seeking an advisory opinion [or] ordering a medical examination”. Colvin, supra; see Hatlestad, supra; see also 38 U.S.C. § 7109, 38 C.F.R. § 20.901(a), (d) (1994). According to the benefit-of-the-doubt rule in 38 U.S.C. § 5107(b), a VA claimant need have only an “approximate balance of positive and negative evidence in order to prevail”. See Gilbert, 1 VetApp. at 54. Further, the “reasons or bases” requirement of 38 U.S.C. § 7104(d)(1) applies to the Board’s application of the benefit-of-the-doubt rule. See Gilbert, 1 Vet.App. at 58. Where “there is significant evidence in support of an appellant’s claim, the Board must provide a satisfactory explanation as to why the evidence was not in equipoise.” Williams (Willie) v. Brown, 4 Vet.App. 270, 273-74 (1993). 2. Application of law to facts. The veteran has qualifying service for purposes of 38 U.S.C. § 1521(a). Accordingly, the issue is whether his service-connected and non-ser-viee-connected disabilities cause him to be permanently and totally disabled. See 38 U.S.C. § 1521(a). In its September 1991 decision, the Board apparently considered the regulations pertaining to a total and permanent disability rating without first evaluating the veteran’s conditions under the schedule of ratings. The last evaluation of the veteran’s non-serviee-eonneeted disabilities was made by the RO in December 1987 (Suppl.R. at 41), and the Board did not" }, { "docid": "22361513", "title": "", "text": "account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its 'rejection of any such evidence. See Gabrielson v. Brown, 7 Vet.App. 36,40 (1994); Abernathy v. Principi, 3 Vet.App. 461, 465 (1992); Simon v. Derwinski, 2 Vet.App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet.App. 164, 169 (1991) (Hatlestad I); Gilbert, supra. The Court reviews BVA factfinding 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, 1 Vet.App. at 53; 38 U.S.C. § 7261(a)(4). Where an appellant has not been harmed by an error in a Board determination, the error is not prejudicial. See 38 U.S.C. § 7261(b) (“[i]n making the determinations under subsection (a) of this section, the Court shall take due account of the rule of prejudicial error”); Yabut v. Brown, 6 Vet.App. 79, 83 (1993); Godwin v. Derwinski, 1 Vet.App. 419, 427 (1991). B. Application of Law to Facts 1. Well-grounded Claim As stated above, in order for a claim to be well grounded, there must be competent evidence of current disability (a medical diagnosis), see Brammer and Rabideau, both supra; of incurrence or aggravation of a disease or injury in service (lay or medical evidence), see Layno and Cartright, both supra; and of a nexus between the in-service injury or disease and the current disability (medical evidence), see Lathan and Grottveit, both supra. The nexus requirement may be satisfied by a presumption that certain diseases manifesting themselves within certain prescribed periods are related to service. See Traut and Goodsell, both supra. Presuming the truthfulness of evidence for the purpose of determining whether the claim is well grounded, as required by Robinette and King, both supra, the statements submitted by the veteran since the 1971 RO decision contain medical evidence of a current right-leg disability (Dr. Martinez’s medical certificate diagnosing general debility and pain in the veteran’s right leg (R. at 49); Dr." }, { "docid": "23585875", "title": "", "text": "all the prescribed factors must be considered by the Under Secretary for Benefits. Ante at 149. The majority contends, however, that consideration may properly be undertaken sub silentio and never written down or disclosed. As we will explain, we do not agree with any such conclusion. However, even if we were to concede the acceptability under § 3.311 of such unwritten, undisclosed consideration by the Under Secretary for Benefits and by inference by the Under Secretary for Health in an advisory medical opinion provided under § 3.311(c)(1), that would not alter the result of the following analysis, a matter that the majority conveniently ignores, under the 1984 Act and requirements established for VA benefits adjudication in title 38 of the U.S. Code. Under 38 U.S.C. § 7104(d)(1), a Board decision must include a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; the statement must be adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Simon v. Derwinski, 2 Vet.App. 621, 622 (1992); Masors v. Derwinski, 2 Vet.App. 181, 188 (1992); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (quoted supra note 1). To comply with this requirement, eight years of unchallenged Court precedent dictates that the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994); Abernathy v. Principi 3 Vet.App. 461, 465 (1992); Gilbert, supra. Under 38 U.S.C. § 5104(b)(1), the Secretary has a comparable responsibility to specify, in the notice of a decision of the agency of original jurisdiction (generally an RO), a “statement of the reasons for the decision” in “any case where the Secretary denies a benefit sought”." }, { "docid": "10210618", "title": "", "text": "on the record; the statement must be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. See S8 U.S.C.A. § 7104(d)(1) (West 1991); Simon v. Derwinski, 2 Vet.App. 621, 622 (1992); Masors, 2 Vet.App. at 188; Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any evidence favorable to the veteran. See Abernathy v. Derwinski, 2 Vet. App. 391, 394 (1992); Hatlestad v. Derwinski, 1 Vet.App. 164, 169 (1991) [Hatlestad /]; Gilbert, supra. Moreover, the Board may not rely on its own unsubstantiated opinion as a basis for a medical conclusion or for rejecting expert medical evidence in the record; rather, the Board’s medical conclusions must be supported by independent medical evidence in the record or by adequate quotation from recognized medical treatises. See Hatlestad v. Derwinski, 3 Vet.App. 213, 217 (1992) [Hatlestad II]; Colvin, 1 Vet.App. at 175. In its February 1991 decision, the Board failed to evaluate the credibility and probative value of the statements from Drs. Bedell and Bainbridge indicating that it is possible or “somewhat probable” that active tuberculosis was present at the veteran’s separation from service, and that it was “most likely” that active PTB arose between 1945 and 1950 (most of which period is within the three-year presumption period for service connection for PTB). This evidence, if believed, tends to show that the veteran’s PTB was initially manifested either during service or, to a degree of 10% or more within the presumption period (active PTB warrants a 100% rating under 38 C.F.R. § 4.97, Diagnostic Codes 6701-6704, 6730 (1992)). Therefore, in denying the veteran’s claim, the Board was required to explain its findings as to the credibility and probative value of this evidence, and its reasons for rejecting it. Remand is thus required for the Board to make such explicit findings. Furthermore, if on" }, { "docid": "11915102", "title": "", "text": "is required to provide a written statement of reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record. See 38 U.S.C. § 7104(d)(1). The statement must be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. See Simon v. Derwinski, 2 Vet.App. 621, 622 (1992); Masors v. Derwinski 2 Vet.App. 181, 188 (1992); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of all material evidence favorable to the veteran. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994); Gilbert, supra. Moreover, the Board “may consider only independent medical evidence to support [its] findings”. Colvin v. Derwinski 1 Vet.App. 171, 175 (1991); see Thurber v. Brown, 5 Vet.App. 119, 122 (1993); Hatlestad v. Derwinski 3 Vet.App. 213, 217 (1992) (Hatlestad II). “If the medical evidence of record is insufficient, or, in the opinion of the BVA, of doubtful weight or credibility, the BVA is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or [quoting] recognized treatises”. Colvin, supra; see Hatlestad II, supra; see also 38 U.S.C. § 7109, 38 C.F.R. § 20.901(a), (d) (1994). The Court reviews BVA factfinding 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, 1 Vet.App. at 53; 38 U.S.C. § 7261(a)(4). B. Application of Law to Facts The veteran has qualifying service for purposes of basic eligibility for VA non-service-connected pension under 38 U.S.C. § 1521(a). The issue before the Court is whether his non-service-eonnected disability was the result of willful misconduct. The Court notes that the BVA did not address whether the veteran’s disability — total blindness — causes him to" }, { "docid": "22361512", "title": "", "text": "the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. See Suttmann v. Brown, 5 Vet.App. 127, 138 (1993); Green (Victor) v. Derwinski, 1 Vet.App. 121, 124 (1991). “If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.” 38 C.F.R. § 4.2 (1994); see also Schafrath v. Derwinski, 1 Vet.App. 589, 595 (1991). The BVA is required to provide a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; the statement must be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Masors, 2 Vet.App. at 188; Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with this requirement, the Board’s statement of reasons or bases must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its 'rejection of any such evidence. See Gabrielson v. Brown, 7 Vet.App. 36,40 (1994); Abernathy v. Principi, 3 Vet.App. 461, 465 (1992); Simon v. Derwinski, 2 Vet.App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet.App. 164, 169 (1991) (Hatlestad I); Gilbert, supra. The Court reviews BVA factfinding 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, 1 Vet.App. at 53; 38 U.S.C. § 7261(a)(4). Where an appellant has not been harmed by an error in a Board determination, the error is not prejudicial. See 38 U.S.C. § 7261(b) (“[i]n making the determinations under subsection (a) of this section, the Court shall take due account of the rule of prejudicial error”); Yabut v. Brown, 6 Vet.App. 79, 83 (1993); Godwin v. Derwinski," }, { "docid": "9831600", "title": "", "text": "record; the statement must be adequate to enable the claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Simon v. Derwinski 2 Vet.App. 621, 622 (1992); Masors v. Derwinski 2 Vet.App. 181, 188 (1992); Gilbert v. Derwinski 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994); Abernathy v. Principi 3 Vet.App. 461, 465 (1992); Gilbert, supra. b. Applicability of Smith opinion: The Secretary identifies the issue surrounding the BVA’s nonconsideration of the veteran’s 1989 hearing testimony as one of CUE under 38 C.F.R. § 3.105(a) (1996), which provides in pertinent part: “Where evidence establishes [CUE], the prior decision will be reversed or amended. For the purpose of authorizing benefits ... reversal of a prior decision on the grounds of [CUE] has the same effect as if the corrected decision had been made on the date of the reversed decision.” He points out that the decision in Smith (William) v. Brown, 35 F.3d 1516 (Fed.Cir.1994), “precludes reliance on a claim of [CUE] to collaterally attack a BVA decision” and that the November 1990 RO “finding that a factual basis for a 40% rating was ascertainable at an even earlier date would necessarily constitute a collateral attack on the BVA’s decision” in March 1990 because the BVA had there accounted for the 1989 hearing evidence in determining that the veteran did not meet the criteria for an increased rating. Br. at 13-14. For his part, the appellant contends that the March 1990 BVA decision — because it denied an increased rating — never had occasion to address the issue of a .proper effective date for an increased rating and that, therefore, the" }, { "docid": "22184082", "title": "", "text": "well-grounded-claim requirement of section 5107(a); where the determinative issue does not require medical expertise, lay testimony may suffice by itself. See Lathan v. Brown, 7 Vet.App. 359, 365, (1995) (citing Grottveit v. Brown, 5 Vet.App. 91, 93 (1993)); Magana v. Brown, 7 Vet.App. 224, 227 (1994). This rule of law applies equally to claims to reopen. See Moray, supra. Pursuant to 38 U.S.C. § 5107(a), once a claimant has submitted a well-grounded claim, the Board is required to assist that claimant in developing the facts “pertinent” to the claim. 38 C.F.R. § 3.159 (1994); Littke v. Derwinski, 1 Vet.App. 90, 91-92 (1990). The duty to assist may, in an appropriate case, include the duty to seek to obtain pertinent private medical records. See Masors, 2 Vet.App. at 186-87; Littke, supra. But the relevance of the records sought must be demonstrated. See Counts v. Brown, 6 Vet.App. 473, 476 (1994); Godwin v. Derwinski, 1 Vet.App. 419, 425 (1991) (noting that the “duty to assist is not unlimited” and that “the duty to develop pertinent facts applies to ‘all relevant facts’ ” (citation omitted) (emphasis added)). With respect to VA’s duty to search for specific documents, “the duty is limited to specifically identified documents that by their description would be facially relevant and material to the claim”. Gobber v. Derwinski, 2 Vet.App. 470, 472 (1992). “The VA’s ‘duty’ is just what it states, a duty to assist, not a duty to prove a claim with the claimant only in a passive role.... Nor is the VA required to search for evidence which, even if obtained, would make no difference in the result. See Colvin, 1 Vet.App. at 174.” Ibid. (citation omitted). Where the record does not adequately reveal the current state of the claimant’s disability and the claim is well grounded, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. See Suttmann v. Brown, 5 Vet.App. 127, 138 (1993); Green (Victor) v. Derwinski, 1 Vet.App. 121, 124 (1991). Such a medical examination should “take into account the records of prior medical treatment, so that the evaluation" }, { "docid": "22184085", "title": "", "text": "analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994); Abernathy v. Principi, 3 Vet.App. 461, 465 (1992); Simon, supra; Peyton v. Derwinski, 1 Vet.App. 282, 285 (1991); Hatlestad v. Derwinski, 1 Vet.App. 164, 169-70 (1991); Ohland v. Derwinski, 1 Vet.App. 147, 149 (1991); Gilbert, supra. Moreover, the Board must support its medical conclusions on the basis of independent medical evidence in the record or through adequate quotation from recognized treatises; it may not rely on its own unsubstantiated medical judgment to reject expert medical evidence in the record, but may reject a claimant’s medical evidence only on the basis of other such independent medical evidence. See Thurber v. Brown, 5 Vet.App. 119, 122 (1993); Hatlestad v. Derwinski, 3 Vet.App. 213, 217 (1992) (Hatlestad II); Colvin, 1 Vet.App. at 175. “If the medical evidence of record is insufficient, or, in the opinion of the BVA, of doubtful weight or credibility, the BVA is always free to supplement the record by seeking an advisory opinion [or] ordering a medical examination”. Colvin, supra; see Hatlestad II and Thurber, both supra; see also 38 U.S.C. § 7109; 38 C.F.R. § 20.901(a), (d) (1994). B. Ulcer and Anxiety Conditions The appellant does not contest the Board’s decision to increase the disability rating from 20% to 40%, but argues that the BVA decision regarding his claim for an increased rating for his ulcer and anxiety conditions should be remanded for the limited purposes of assigning separate disability ratings for each condition. He maintains that VA’s decision to combine the two conditions into a single condition without any supporting medical evidence, and its failure to properly consider 38 C.F.R. §§ 4.3 and 4.7 (1992), justifies a remand. The Court agrees. First, the Court finds that the issue of the combined rating was adequately raised by the veteran before the RO and BVA prior to the decisions upon which this appeal is" }, { "docid": "22184084", "title": "", "text": "of the claimed disability will be a fully informed one”. Green, supra; see also Schafrath v. Derwinski, 1 Vet.App. 589, 595 (1991); 38 C.F.R. § 4.2 (1994) (“[i]f a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes”). The Board is required to provide a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record, see 38 U.S.C. § 7104(d)(1), including its denial of any assistance specifically sought by the claimant, see Godwin, 1 Vet.App. at 427. The statement must be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. See Simon v. Derwinski, 2 Vet.App. 621, 622 (1992); Masors, 2 Vet.App. at 188; Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994); Abernathy v. Principi, 3 Vet.App. 461, 465 (1992); Simon, supra; Peyton v. Derwinski, 1 Vet.App. 282, 285 (1991); Hatlestad v. Derwinski, 1 Vet.App. 164, 169-70 (1991); Ohland v. Derwinski, 1 Vet.App. 147, 149 (1991); Gilbert, supra. Moreover, the Board must support its medical conclusions on the basis of independent medical evidence in the record or through adequate quotation from recognized treatises; it may not rely on its own unsubstantiated medical judgment to reject expert medical evidence in the record, but may reject a claimant’s medical evidence only on the basis of other such independent medical evidence. See Thurber v. Brown, 5 Vet.App. 119, 122 (1993); Hatlestad v. Derwinski, 3 Vet.App. 213, 217 (1992) (Hatlestad II); Colvin, 1 Vet.App. at 175. “If the medical evidence of record is insufficient, or, in" }, { "docid": "9831599", "title": "", "text": "of all evidence and material of record”); cf. Quarles v. Derwinski 3 Vet.App. 129, 134-36 (1992) (Board based effective date on November 1984 letter from doctor, but, because November 1984 letter included and was based upon October 1984 examination, and because that examination occurred within one year prior to filing of claim, Board’s setting of November, rather than October, 1984 effective date was clearly erroneous); cf. also Evans v. Brown, 9 Vet.App. 273, 283 (1996) (in claim to reopen on the basis of new and material evidence, if evidence is “new” and “probative”, then VA must determine “in light of all the evidence of record, [whether] there [is] a reasonable possibility that the outcome of the claim on the merits would be changed” (emphasis added)). Thus, the BVA was required to consider the 1989 hearing testimony in ascertaining the effective date for the appellant’s rating. The Board is required to provide a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; the statement must be adequate to enable the claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Simon v. Derwinski 2 Vet.App. 621, 622 (1992); Masors v. Derwinski 2 Vet.App. 181, 188 (1992); Gilbert v. Derwinski 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994); Abernathy v. Principi 3 Vet.App. 461, 465 (1992); Gilbert, supra. b. Applicability of Smith opinion: The Secretary identifies the issue surrounding the BVA’s nonconsideration of the veteran’s 1989 hearing testimony as one of CUE under 38 C.F.R. § 3.105(a) (1996), which provides in pertinent part: “Where evidence establishes [CUE]," }, { "docid": "11968237", "title": "", "text": "entitled to an effective date of October 1978. She can receive an earlier effective date only if there was clear and unmistakable error (CUE) in one of the final RO decisions or if one of the prior RO decisions was not final. She contends that when the RO previously decided her case, it did not consider all the evidence then of record. The BVA is required to provide a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; the statement must be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Masors v. Derwinski, 2 Vet.App. 181, 188 (1992); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with this requirement, the Board’s statement of reasons or bases must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994); Abernathy v. Principi, 3 Vet.App. 461, 465 (1992); Simon v. Derwinski, 2 Vet.App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet.App. 164, 169 (1991); Gilbert, supra. The Court reviews BVA factfinding 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, 1 Vet.App. at 53; 38 U.S.C. § 7261(a)(4). B. CUE Pursuant to 38 C.F.R. § 3.105(a) (1994), “[pjrevious determinations which are final and binding ... will be accepted as correct in the absence of [CUE].” A CUE claim is a collateral attack on a final RO decision. See Smith (William) v. Brown, 35 F.3d 1516, 1527 (Fed.Cir.1994). In order for there to be a valid claim of CUE, there must have been an error in the prior adjudication of a claim based on the record then before" }, { "docid": "11961535", "title": "", "text": "be unemployable by reason of his or her disability(ies), age, occupational background and other related factors, the following are authorized to approve on an extra-schedular basis a permanent and total disability rating for pension purposes: the Adjudication Officer; or where regular schedular standards are met as of the date of the rating decision, the rating board. 38 C.F.R. § 3.321(b)(2) (1994). Sections 4.17 and 3.321(b)(2) establish subjective standards “by providing pension eligibility for a veteran whose disability does not meet the objective criteria but which for that particular veteran is so incapacitating as to preclude a substantially gainful occupation”. Talley v. Derwinski 2 Vet.App. 282, 288 (1992). This Court has interpreted § 3.321 to mean that “the rating schedule will apply unless there are ‘exceptional or unusual’ factors which render application of the schedule impractical.” Fisher v. Principi, 4 Vet.App. 57, 60 (1993) (in the context of a claim for compensation). The Board is required to provide a written statement of reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record. See 38 U.S.C. § 7104(d)(1). The statement must be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. See Simon v. Derwinski, 2 Vet.App. 621, 622 (1992); Masors v. Derwinski, 2 Vet.App. 181, 188 (1992); Gilbert v. Derwinski 1 Vet.App. 49, 57 (1990). Moreover, the Board “may consider only independent medical evidence to support [its] findings”. Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991); see Thurber v. Brown, 5 Vet.App. 119, 122 (1993); Hatlestad v. Derwinski, 3 Vet.App. 213, 217 (1992) (Hatlestad II). “If the medical evidence of record is insufficient, or, in the opinion of the BVA, of doubtful weight or credibility, the BVA is always free to supplement the record by seeking an advisory opinion [or] ordering a medical examination”. Colvin, supra; see Hatlestad, supra; see also 38 U.S.C. § 7109, 38 C.F.R. § 20.901(a), (d) (1994). According to the benefit-of-the-doubt rule in 38 U.S.C. § 5107(b), a VA claimant need have only" }, { "docid": "11940771", "title": "", "text": "in a one-man laundry position” (R. at 8), the Board did not comment upon the evidentiary significance, if any, it had given this document. Such treatment of the evidence does not meet the standard set in Gilbert, for the Board did not “account for the evidence which it finds to be persuasive or unpersuasive,” Gilbert, 1 VetApp. at 57, or “analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reason for its rejection of any such evidence.” Caluza v. Brown, 7 Vet.App. 498, 506 (1995); see also Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994); Gilbert, supra. B. Once a claimant has satisfied his initial burden of submitting a well-grounded claim, VA has an affirmative duty to “assist such a claimant in developing the facts pertinent to the claim.” 38 U.S.C. § 5107(a); see Proscelle, supra. “Where the record does not adequately reveal the current state of the claimant’s disability and the claim is well grounded, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination.” Allday v. Brown, 7 Vet.App. 517, 526 (1995) (citing Suttmann v. Brown, 5 Vet.App. 127, 138 (1993); Green (Victor) v. Derwinski 1 Vet.App. 121, 124 (1991)). Further, “[w]here the veteran claims a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination” to fulfill its duty to assist. Olson v. Principi, 3 Vet.App. 480, 482 (1992) (citing Proscelle, supra). Here, the Board properly identified a need for a current examination when it remanded the appellant’s claim in 1992 and ordered a psychiatric examination to determine “the current nature and extent of [the appellant’s] psychiatric disablement ...[,] specifically ... the degree of social and industrial impairment attributable to [PTSD].” R. at 127. The Board also ordered the RO to make the appellant’s claims folder available to the examiner, who was to conduct all studies necessary to make the requested determinations. However, a current examination was not obtained, and" }, { "docid": "22361511", "title": "", "text": "such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full. 38 U.S.C. § 1154(b). The regulation implementing section 1154(b) is at 38 C.F.R. § 3.304(d). Pursuant to 38 U.S.C. § 5107(a), once a claimant has submitted a well-grounded claim, the Board is required to assist that claimant in developing the facts pertinent to the claim. See 38 C.F.R. § 3.159 (1994); Littke v. Derwinski, 1 Vet.App. 90, 91-92 (1990). The duty to assist may, in an appropriate case, include the duty to seek to obtain pertinent private medical records. See Masors v. Derwinski, 2 Vet.App. 181, 186-87 (1992); Littke, supra. Where the record does not adequately reveal the current state of the claimant’s disability and the claim is well grounded, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. See Suttmann v. Brown, 5 Vet.App. 127, 138 (1993); Green (Victor) v. Derwinski, 1 Vet.App. 121, 124 (1991). “If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.” 38 C.F.R. § 4.2 (1994); see also Schafrath v. Derwinski, 1 Vet.App. 589, 595 (1991). The BVA is required to provide a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; the statement must be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Masors, 2 Vet.App. at 188; Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with this requirement, the Board’s statement of reasons or bases must" }, { "docid": "11915101", "title": "", "text": "determined in each individual case, based on all available lay and medical evidence pertaining to his or her mental condition at the time of suicide. (2) The act of suicide or a bona fide attempt is considered to be evidence of mental unsoundness. Therefore, where no reasonable adequate motive for suicide is shown by the evidence, the act will be considered to have resulted from mental unsoundness. (3) A reasonable adequate motive for suicide may be established by affirmative evidence showing circumstances which could lead a rational person to self-destruction. (c) Evaluation of evidence. (1) Affirmative evidence is necessary to justify reversal of service department findings of mental unsoundness where [VA] criteria do not otherwise warrant contrary findings. (2) In all instances any reasonable doubt should be resolved favorably to support a finding of service connection (see § 3.102). 38 C.F.R. § 3.302 (1994) (boldface emphasis added). VA regulations contain no provisions purporting to establish comparable guidance, or any guidance, for consideration of suicide or attempted suicide explicitly for purposes of non-service-eonnected benefits. The Board is required to provide a written statement of reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record. See 38 U.S.C. § 7104(d)(1). The statement must be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. See Simon v. Derwinski, 2 Vet.App. 621, 622 (1992); Masors v. Derwinski 2 Vet.App. 181, 188 (1992); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of all material evidence favorable to the veteran. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994); Gilbert, supra. Moreover, the Board “may consider only independent medical evidence to support [its] findings”. Colvin v. Derwinski 1 Vet.App. 171, 175 (1991); see Thurber v. Brown, 5 Vet.App." }, { "docid": "1104146", "title": "", "text": "Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 59 Fed.Reg. 60,560 (1994) (to be codified at 38 C.F.R. § 3.385) (emphasis added). The Court and VA are required to apply a regulation adopted during the pendency of a case when the new regulation is more favorable to a claimant, unless the Secretary has specified to the contrary. See West v. Brown, 7 Vet.App. 70, 76 (1994); Swann v. Brown, 5 Vet.App. 229, 232 (1993); Hayes v. Brown, 5 Vet.App. 60, 66-67 (1993); Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991). The Secretary did not so specify as to the amended § 3.385. The Board is required to provide a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; the statement'must be adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Simon v. Derwinski, 2 Vet.App. 621, 622 (1992); Masors, 2 Vet.App. at 188; Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994); Abernathy v. Principi, 3 Vet.App. 461, 465 (1992); Simon, supra; Peyton v. Derwinski, 1 Vet.App. 282, 285 (1991); Hatlestad v. Derwinski, 1 Vet.App. 164, 169 (1991); Gilbert, supra. B. Application of Law to Facts 1. Amended 38 C.F.R. § 3.385: As noted above, in order to decide whether the Court is required to apply the amended 38 C.F.R. § 3.385, adopted in November 1994 during the pendency of this appeal, to the veteran’s pending appeal" }, { "docid": "22030885", "title": "", "text": "have been manifestly different but for the alleged error”. Fugo v. Brown, 6 Vet.App. 40, 44 (1993). On appeal of a BVA determination that there was no CUE in a prior RO decision, the Court’s review is limited to determining whether the ’ Board’s conclusion is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” (38 U.S.C. § 7261(a)(3)(A)) and whether it is supported by an adequate statement of “reasons or bases” (38 U.S.C. § 7104(d)(1)). See Eddy v. Brown, 9 Vet.App. 52, 57 (1996); Glynn v. Brown, 6 Vet.App. 523, 530-31 (1994); Damrel v. Brown, 6 Vet.App. 242, 246 (1994); Russell, 3 Vet.App. at 315. The Board is required by 38 U.S.C. § 7104(d)(1) to provide a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record, including its denial of any assistance specifically sought by the claimant. See Godwin v. Derwinski, 1 Vet.App. 419, 427 (1991). The statement must be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. See Simon v. Derwinski, 2 Vet.App. 621, 622 (1992); Masors v. Derwinski, 2 Vet.App. 181, 188 (1992); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of all material evidence favorable to the veteran. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed.Cir.1996) (table); Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994); Gilbert, supra. The veteran asserts CUE in prior final RO decisions of May 1947, June 1949, September 1952, October 1982, and December 1983. R. at 191-92, 235; see also Brief (Br.) at 17. He asserts, in effect, that the evidence of record before the RO at the time of each of these prior decisions, specifically “the April 1947 and July 1952 VA examinations, established through[-]and[-]through" }, { "docid": "23585876", "title": "", "text": "as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Simon v. Derwinski, 2 Vet.App. 621, 622 (1992); Masors v. Derwinski, 2 Vet.App. 181, 188 (1992); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (quoted supra note 1). To comply with this requirement, eight years of unchallenged Court precedent dictates that the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994); Abernathy v. Principi 3 Vet.App. 461, 465 (1992); Gilbert, supra. Under 38 U.S.C. § 5104(b)(1), the Secretary has a comparable responsibility to specify, in the notice of a decision of the agency of original jurisdiction (generally an RO), a “statement of the reasons for the decision” in “any case where the Secretary denies a benefit sought”. 38 U.S.C. § 5104(a), (b)(1); see generally Crippen v. Brown, 9 Vet.App. 412, 420 (1996) (outlining history of 1989 enactment of section 5104(b), effective in February 1990). It is thus axiomatic that section 7104(d)(1) requires the Board to discuss specifically, in the adjudication of a case, the application of all “factors” that VA is required by law and regulation to consider in adjudication of a claim. See Ridings v. Brown, 6 Vet.App. 544, 546 (1994) (finding reasons-or-bases error and remanding where Board failed to discuss all elements applicable to determination whether recovery of overpayment would be against equity and good conscience under 38 C.F.R. § 1.965(a)); Cullen v. Brown, 5 Vet.App. 510, 512 (1993) (BVA decision “not capable of being judicially reviewed due to its failure to provide adequate ‘reasons or bases’ for its determination that recovery of the overpayment [under 38 C.F.R. § 1.965(a) ] of disability compensation benefits would not violate the principles of equity and good conscience”). Indeed, the Court in Gilbert, itself, remanded for the Board to explain why the evidence" }, { "docid": "6778544", "title": "", "text": "to present. See Goss v. Brown, 9 Vet.App. 109, 114 (1996) (where record does not adequately reveal current state of claimant’s service-connected disability, fulfillment of 38 U.S.C. § 5107(a) duty to assist requires thorough and contemporaneous medical examination); Floyd (Charles) v. Brown, 9 Vet.App. 88, 93 (1996) (section 5107(a) duty to assist includes medical examination that considers veteran’s prior medical examinations and treatment); Green (Victor) v. Derwinski 1 Vet.App. 121, 124 (1991). 2. Left-Foot Plantar Fasciitis. The appellant argues that the matter of the appropriate rating for his service-connected left-foot plantar fasciitis should be remanded because the Board decision provides an inadequate statement of reasons or bases under 38 U.S.C. § 7104(d)(1) for its rating of that condition. The Court agrees. The Board is required to include in its decision a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; the statement must be adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994); Gilbert, supra. The Board rated the veteran’s left-foot plantar fasciitis “by analogy” under 38 C.F.R. § 4.71a, DC 5277 (1998), “for weak foot, bilateral, asymptomatic condition secondary to many constitutional conditions and characterized by atrophy of the musculature, disturbed circulation, and weakness”. R. at 25. The VA rating schedule for “[w]eak foot, bilateral” provides for a minimum rating of 10%. 38 C.F.R. § 4.71a, DC 5277. However, the Board also noted that another diagnostic code, for “[f]oot injuries," } ]

[ { "docid": "22778446", "title": "", "text": "bill of review; which latter bill brings forward the interests affected by the decree other than those which are'founded in privity of representation. The present bill seeks to revive the suit by introducing the heirs of Whiting before the Court; and so far it has the character of a bill of revivor. It seeks also to state a new fact, viz., the death of Whiting, before the sale; and so far it is supplementary. It is, therefore, a compound bih of review, of supplement, and of revivor; and it is entirely, maintainable as such, if it presents facts which go to the merits of the original decree of foreclosure and sale. It has also been suggested at the bar, that no bill of review lies for errors of law-, except where such eprorsAre apparent on the face of. the decree of the Court. That is true in the sense in-which the . language is used in the English practice. In England, the decree alwavs recites the substance of the bill and answer and pleadings, and also the facts on which the Court founds its decree. But in America the decree does not ordinarily recite either the bill, or answer, or pleadings; and generally not the facts, on which, the decree is founded. But with us the bill, answer, and other pleadings, together with the decree, constitute what is properly considered as the record. And, .therefore, in truth, the rule in each country is precisely the same, in legal effect; although expressed in different language; viz., that the bill of review must be. founded on some error apparent upon the bill, answer, and other pleadings,-and decree; and that you are not at liberty to go into the evidence at large in order to establish an objection to the decree, founded on the supposed mistake of the Court in its own deductions from the evidence. Having made these explanations, which seemed proper with reference to the arguments pressed at the bar, we may now return to the consideration of the direct points presented for the consideration of the Court. The third and" } ]

[ { "docid": "907341", "title": "", "text": "1953. Specifically, we affirm the district court’s determination that Phillips constructively reduced the invention of crystalline polypropylene to practice on January 27, 1953, the date on which Phillips filed an application for a United States patent describing and claiming processes and products, including a novel solid polypropylene. We agree with the district court that that application, in compliance with the disclosure requirements of our patent laws, disclosed the crystalline polypropylene described in the count of Interference No. 89,634 and claimed in Phillips’ application filed January 11, 1956 and that the 1953 application contained the necessary utility disclosures with respect to crystalline polypropylene. Because of our conclusion that Phillips is entitled to priority on the basis of its constructive reduction to practice, we do not reach the appellants’ contention that the district court erred in finding that Phillips had earlier achieved an actual reduction to practice. Moreover, since we agree with the district court that Phillips met the clear and convincing burden of proof ordinarily imposed on a plaintiff challenging the Board’s decision in an interference, the issue of Montedison’s fraud would have no effect on Phillips’ entitlement to priority and we do not reach it. III. AN OVERVIEW OF THE LEGAL PRINCIPLES A. Scope of Review An action brought under 35 U.S.C. § 146 is a trial de novo; the statute provides that the Patent Office record shall be admitted in the district court proceeding “without prejudice to the right of the parties to take further testimony.” See Frilette v. Kimberlin, 508 F.2d 205, 211 (3d Cir. 1974) (en banc), cert. denied, 421 U.S. 980, 95 S.Ct. 1983, 44 L.Ed.2d 472 (1975); Minnesota Mining & Manufacturing Co. v. Carborundum Co., 155 F.2d 746, 748 (3d Cir. 1946). Nevertheless, a section 146 proceeding is governed by the strict rule that the Board’s decision on priority, a “question of fact,” is not to be disturbed “unless the contrary is established by testimony which in character and amount carries thorough conviction.” Morgan v. Daniels, 153 U.S. 120, 125, 14 S.Ct. 772, 773, 38 L.Ed. 657 (1894); Stamicarbon, N. V. v. Chemical Construction Corp.," }, { "docid": "907389", "title": "", "text": "a number of discrete issues relating to various evidentiary rulings made by the district court in the course of the lengthy trial. We consider only the major contentions. It is argued that Dr. Fox was not sufficiently familiar with crystalline polypropylene in 1953 to be qualified to testify as to the state of that art. We believe, however, the relevant art must be the broader one of polymer chemistry, crystalline polypropylene not having been discovered until 1953 or shortly before that date. See Trowbridge v. Abrasive Co. of Philadelphia, 190 F.2d 825, 829 (3d Cir. 1951). Dr. Fox appears to have been well qualified to testify with respect to polymer chemistry; moreover, the question of expert qualification is a matter peculiarly for decision by the trial judge. Id. See Seese v. Volkswagenwerk A.G., 648 F.2d 833, 844 (3d Cir. 1981). Montedison argues that the district court erred in admitting the testimony of Drs. Fox and Bailey and other Phillips’ witnesses without requiring Phillips to show special circumstances explaining why the testimony was not presented first to the Board. However, new expert testimony is clearly admissible in a section 146 action without such justification to the extent that it aids the court in understanding issues already presented to the Board. Minnesota Mining & Manufacturing Co. v. Carborundum Co., 155 F.2d 746, 748 (3d Cir. 1946); see Minnesota Mining & Manufacturing Co. v. Van Cleef, 139 F.2d 550, 555 (7th Cir. 1943). Montedison urges that the district court erred in admitting the evidence of the repetition experiments conducted by Montedison’s Cappucci and Longi which was rejected by the Board as untimely submitted. The Board’s rejection of the evidence of the Cappucci and Longi work on the ground that it was untimely presented may well have been influenced by its view that all such repetition experiments were inadmissible nunc pro tunc evidence in any event. However, the district court correctly overruled the Board on the question of the admissibility of evidence of subsequent repetition experiments to prove inherent disclosure of a count invention in a patent application. See Spero v. Ringold, 377 F.2d" }, { "docid": "14369769", "title": "", "text": "as to bar relief against judgments entered by the court upon the entertainment by the latter of an erroneous matter of fact? I think not, from the language of the first saving clause of Rule 60(b). Before the enactment of the Federal Rules of Civil Procedure the courts had power to correct errors in judgments and decrees. 3 Moore, Federal Practice, §§ 60.02, 60.03, pp. 3255, 3266. In equity, a decree could be reopened by a bill of review (or bill in the nature of a bill of review) on two grounds (1) for error of law apparent on the face of the record (pleadings, proceedings, and decree) without reference to the evidence in the case, and (2) to introduce newly discovered evidence. Scotten v. Littlefield, 235 U.S. 407, 411, 35 S.Ct. 125, 59 L.Ed. 289; Shelton v. Van Kleeck, 106 U.S. 532, 1 S.Ct. 491, 27 L.Ed. 269; Beard v. Burts, 95 U.S. 434, 24 L.Ed. 485; cf. Ex parte Thomas, 73 App.D.C. 50, 114 F.2d 847. The courts have held the bill of review for error apparent had to be filed within the time allowed for an appeal. Hagerott v. Adams, 8 Cir., 61 F.2d 35, 36, and cases cited. The bill of review for newly discovered evidence is limited only by the equitable principle of laches. Hagerott v. Adams, supra, 61 F.2d page 37. The writ of error coram nobis or coram vobis was a common-law writ and it allowed a party to bring before the court which rendered the judgment errors of fact not apparent on the record which were material in the proceeding and had escaped attention. United States v. Mayer, supra; Bronson v. Schulten, supra; see Bouvier’s Law Dictionary, Rawle’s 3rd Revision, Vol. 1, p. 681. These cases also point out that what was formerly done by a writ coram nobis is now done by motion. There was no time limitation as to when the writ should be brought, and the cases where the writ was used were generally limited to facts as where one of the parties to the judgment had died, before" }, { "docid": "8758584", "title": "", "text": "August 4,1913, the bill of review with which the present proceeding is concerned, was filed in the District Court. This was more than two years after the original order in the District Court, dismissing the reclamation proceeding, was made. The District Court dismissed the bill of review, 213 Fed. Rep. 701. That decree was affirmed in the Circuit Court of Appeals, 213 Fed. Rep. 705. Then the case was appealed here. Both courts below put their decisions on the ground that the appeal to the Circuit Court of Appeals from the original order of the District Court in the reclamation proceedings really involved the claim for the United States Steel stock in its present aspect, and that if not presented to the Court of Appeals when there on appeal it could not be held back and made the subject of a bill of review, as is now attempted to be done. We think this decision was clearly right. Furthermore, the ground alleged for the bill of review now is, that the principles which determined the disposition of the Gorman Case, 229 U. S. 19 (decided May 26, 1913, a little more than two years after the decree in the District Court) reversing the Circuit Court of Appeals in the same case, 175 Fed Rep. 769, would, had they been-applied in this .case, have required a different result in the District Court in dealing with the original petition in reclamation, so far as the three hundred shares of the United States Steel stock, pledged with the Hanover National Bank, are concerned. Bills of review are on two grounds; first, error of law apparent On the face of the record without further examination of matters of fact; second, new facts discovered since the decree, which should materially affect the decree and probably induce a different result. 2 Bates’ Federal Equity Procedure, 762; Street’s Federal Equity Practice, Vol. 2, § 2151. If the decision in the Gorman Case would have required a different result if the principles upon which it was decided had been applied in the original proceeding, which we do not" }, { "docid": "22075255", "title": "", "text": "patent adjudged valid in one. circuit by this court at the same time had been adjudged invalid by the Circuit Court of Appeals in another circuit, was due not to any fault of the law or of the patent system but to the failure of plaintiffs to take steps that might have avoided it. Proceeding to consider the legal question whether the decision of this court in 245 U. S. 198, either showed an error of . law apparent on the face of the record without further examination of matters of fact, or. constituted a new fact discovered since the decree and materially affecting it, the court held on the authority of Scotten v. Littlefield, 235 U. S. 407, 411; Tilghman v. Werk, 39 Fed. 680; and Hoffman v. Knox, 50 Fed. 484, that the bill of review could not be maintained. The cases cited are to the effect that, in the application of the ancient rule of practice in equity, based upon Lord Bacon’s first ordinance (Story Eq. Pl., 6th ed., § 404), a-change in the authoritative rule of law, resulting from a decision by this court announced subsequent to the former decree, qeither demonstrates an “ error of law apparent ” upon the face.of that decree nor constitutes new matter in pais justifying a review. But a bill of review is. called for only after a final decree — one that finally adjudicates upon the entire merits,' leaving nothing further to be done except the execution of it. If it be only interlocutory, the court at any time before final decree may modify or rescind it. Story Eq. Pl., §§ 408, a, 421, 425. In the so-called bill of review herein, it is in-terms alleged that the decree of the District Court for the Western District of Pennsylvania, entered July 24, 1914, was' an interlocutory decree.' The same is alleged as to the decree of January 5, 1916. Both allega tions are admitted by the answer, which at the same time asserts that the “ bill of review ” is in fact only a petition for rehearing. Obviously," }, { "docid": "907390", "title": "", "text": "to the Board. However, new expert testimony is clearly admissible in a section 146 action without such justification to the extent that it aids the court in understanding issues already presented to the Board. Minnesota Mining & Manufacturing Co. v. Carborundum Co., 155 F.2d 746, 748 (3d Cir. 1946); see Minnesota Mining & Manufacturing Co. v. Van Cleef, 139 F.2d 550, 555 (7th Cir. 1943). Montedison urges that the district court erred in admitting the evidence of the repetition experiments conducted by Montedison’s Cappucci and Longi which was rejected by the Board as untimely submitted. The Board’s rejection of the evidence of the Cappucci and Longi work on the ground that it was untimely presented may well have been influenced by its view that all such repetition experiments were inadmissible nunc pro tunc evidence in any event. However, the district court correctly overruled the Board on the question of the admissibility of evidence of subsequent repetition experiments to prove inherent disclosure of a count invention in a patent application. See Spero v. Ringold, 377 F.2d at 657-58. Even if the district court erred in admitting evidence rejected on a procedural ground by the Board, the error was harmless. The Cappucci and Longi evidence is cumulative. Other repetition evidence establishes that Phillips’ 1953 application inherently disclosed the crystalline polypropylene of the count. Montedison and Standard contend that the ex parte experiments of Phillips’ Witt and DeLap were erroneously admitted and accorded weight by the district court. Where, as here, the party seeking to discredit ex parte tests is permitted discovery of the persons who performed them and cross-examination at trial of the witness who testifies as to the conditions of the tests and their relevance, such tests have the status of other evidence and the district court did not err in finding them persuasive on the question of inherent disclosure. See Johnson & Johnson v. W.L. Gore & Associates, Inc., 436 F.Supp. 704, 719 n.28 (D.Del. 1977); 5 Wigmore on Evidence § 1385(3) (Chadbourn rev. ed. 1974). Having concluded that Phillips’ 1953 application disclosed the count invention and upon consideration of" }, { "docid": "3523498", "title": "", "text": "U.S.C. § 146 the parties can create a new record; they can present new witnesses, adduce new evidence, run new tests, conduct demonstrations and plant visits, and bring in experts; and in general do what is needed, and the district court allows, in order to ascertain the truth and decide the dispute. See Standard Oil Co. (Indiana) v. Montedison, S.p.A., 664 F.2d 356, 361, 212 USPQ 327, 332 (3d Cir.1981) (“action brought under 35 U.S.C. § 146 is a trial de novo ”), cert. denied, 456 U.S. 915, 102 S.Ct. 1769, 72 L.Ed.2d 174 (1982). The majority cites General Instrument Corp. v. Scientific-Atlanta, Inc., 995 F.2d 209,27 USPQ2d 1145 (Fed.Cir.1993), wherein this court sustained the decision of the district court not to consider a public use issue that had not been raised before the Board. This court reaffirmed, however, that “the district court may, in appropriate circumstances, exercise its discretion and admit testimony on issues even though they were not raised before the Board”. Id. at 214, 27 USPQ at 1149. The 1985 legislation did not affect the statutory divergence between direct review by the Federal Circuit on the PTO record, 35 U.S.C. § 144, and the remedy by civil action in the district court authorized by 35 U.S.C. § 146. These paths are intended to provide different recourse. See Standard Oil Co. v. Montedison, S.p.A., 540 F.2d 611, 616-17, 191 USPQ 657, 660-61 (3d Cir.1976) (in a § 146 review of the decision of the Board, the court has discretion to depart from the general rule against raising new issues, when relevant to the factual issue of priority of invention). The reforms applied to the PTO in 1985 did not operate to reduce the discretion of the district court in a § 146 action. As stated in Perkins v. Kwon, 886 F.2d at 328, 12 USPQ2d at 1311, “Congress intended that if patentability is fairly placed at issue in the proceeding, it will be determined.” Remedy for agency action by trial de novo in a court is not unique to the patent system. One need not look beyond other" }, { "docid": "13260417", "title": "", "text": "July, 1930, identifying a copy of said Howard 1917 application. There has also been submitted without objection or protest of either party, certain purported excerpts from the record in Hartford-Empire Company v. Nivison-Weiskopf Company, above mentioned, tried in July, 1929, indicating that the complete file wrapper of the Howard 1917 application for patent was produced and offered in evidence as Plaintiff’s Exhibit 69, this being offered by the same counsel who now appear for defendant in the instant case. We shall treat the motion as a motion for leave to file in the lower court a bill of review on the ground of newly discovered evidence. Rules relating to bills of review are said first to have been systematically arranged by Lord Bacon in his celebrated ordinances in chancery. Purcell v. Coleman, 4 Wall. (U. S.) 513, 18 L. Ed. 435; Clapp v. Thaxter, 7 Gray (Mass.) 384. A bill of review will lie after final decree to alter or reverse the final decree by the court rendering it, when the term at which the decree was entered has ended (1) for error apparent in the record; (2) newly discovered evidence after the term; and (3) for fraud in procuring the decree. Swift v. Parmenter (C. C. A. 8) 22 F.(2d) 142; Richardson v. Lowe (C. C. A. 8) 149 F. 625; Simmons Co. v. Grier Bros. Co., 258 U. S. 82, 42 S. Ct. 196, 66 L. Ed. 475; National Brake & Elec. Co. v. Christensen, 254 U. S. 425, 41 S. Ct. 154, 65 L. Ed. 341; Hopkins v. Hebard, 235 U. S. 287, 35 S. Ct. 26, 59 L. Ed. 232. There are technical refinements noting a distinction between a bill of review and a bill in the nature of a bill of review, which we need not here consider. During the term at which a decree is entered, the court entering it may, in the exercise of its discretion, on motion for rehearing or otherwise, change, modify, or set aside its decree; and the time for filing a hill of review may bo said to begin" }, { "docid": "22075254", "title": "", "text": "below, they knew of the affirmance of the decision of the District Court of New York by the Circuit Court of Appeals for the Second Circuit, yet made no request to either court in the Third Circuit to. have the entry of a decree withheld; that on the contrary, with knowledge that this court had under consideration a petition for certiorari in the Second Circuit case, they prer pared and of their own motion caused to be entered on January 5, 1916,'the decree dismissing their suit as to the patent infringement; and after this court on January 10, 1916, granted.the certiorari, they allowed the term to end without moving to suspend, open, or vacate the decree of Jaunary 5. The court held that in dffect, so far as plaintiffs were concerned, tíiat decree was a consent de cree, and while not going to the extent of holding that this was sufficient to bar them from maintaining the bill of. review, did declare that the anomalous situation and consequent hardship,- arising from the fact that a patent adjudged valid in one. circuit by this court at the same time had been adjudged invalid by the Circuit Court of Appeals in another circuit, was due not to any fault of the law or of the patent system but to the failure of plaintiffs to take steps that might have avoided it. Proceeding to consider the legal question whether the decision of this court in 245 U. S. 198, either showed an error of . law apparent on the face of the record without further examination of matters of fact, or. constituted a new fact discovered since the decree and materially affecting it, the court held on the authority of Scotten v. Littlefield, 235 U. S. 407, 411; Tilghman v. Werk, 39 Fed. 680; and Hoffman v. Knox, 50 Fed. 484, that the bill of review could not be maintained. The cases cited are to the effect that, in the application of the ancient rule of practice in equity, based upon Lord Bacon’s first ordinance (Story Eq. Pl., 6th ed., § 404), a-change" }, { "docid": "22809771", "title": "", "text": "not repeat the points there decided. The case was too plain to leave any possible doubt respecting the correctness of our decision. Moreover, the record showed an application made in the court below, before the appeal to this court, for a bill of review, which was decided by this court to have been properly refused. But it seems that the appellant is not satisfied with the judgment of the court, and now makes an application to the court for leave to file another bill of review in the court below. \"We have no doubt that the complainant honestly believes that he has been greatly wronged by the defendant below, who has taken the liberty of breaking his promise with regard to a parol contract for an exchange of property with the complainant ; but we had supposed that in the opinion just delivered, we had shown clearly to the satisfaction of any person who did not suffer uuder some obliquity of mental vision, that by his own statement of his case, the complainant had mistaken his remedy; and that although he may have suffered a wrong by the defendant’s want of good faith, he had not presented a case which required a court of equity to disregard the statute of frauds, because it had been used for the jmrpose of committing a fraud. As if a party to a contract of exchange had received a deed and kept the land; refusing to give a conveyance for the land given in exchange. But in this case there was nothing shown but a broach of promise and a scrambling possession, followed by litigation. The present application shows more perseverance and faith in the applicant than discretion or judgment; and presents not a single feature of a case proper for a bill of review. By Lord Chancellor Bacon’s rules, it was declared: “Ho bill of review shall be admitted except it contain either error in law appearing in the body of the decree without further examination of matters in fact, or some new matter which hath arisen in time after the decree; and" }, { "docid": "11387152", "title": "", "text": "case stands on facts clearly showing intentional withholding of evidence. In fact, even if counsel were correct, we would not go that far. To hold with counsel’s contention is tantamount to judicial abrogation of R.S. § 4915, 35 U.S.C.A. § 63. Such a contention would make it impossible for a plaintiff to meet the test laid down by the doctrine of Morgan v. Daniels, i. e., that the interference-judgment can be overcome “by testimony which in character and amount carries thorough conviction.” [153 U.S. 120, 14 S.Ct. 772, 38 L.Ed. 657.] Id. at 728. That this court properly interpreted Barrett is indicated in a later case in the Third Circuit under R.S. Section 4915 (now 35 U.S.C. § 146) in which that court, pointing out that the statute provides that the trial in the district court shall be without prejudice to the right to take further testimony, emphasized that in Barrett the plaintiffs had specifically instructed witnesses not to answer certain questions. Minnesota Mining & Mfg. Co. v. Carborundum Co., 155 F.2d 746, 748 (3d Cir. 1946). It is also to be noted that the Third Circuit, substantially tracking the approach of this court in Globe-Union, observed that “[t]o adopt the view contended for here by the defendants would be to change the nature of an R.S. Section 4915 proceeding and to rewrite the statute.” Id. The defendant in the present ease attempts to distinguish Globe-Union and Minnesota Mining on the basis that the evidence offered in those cases was that of expert witnesses. This appears to me to be a distinction without a difference; in both cases the contention was unsuccessfully made that the witnesses were available and not offered in the administrative proceedings and therefore under Barrett should not have been heard. Yet that is the standard, i. e., awareness of availability and failure to offer, which the majority opinion, in essence, is adopting. It is also to be noted in Globe-Union that this court did not specify a stringent standard on procurability or availability: It seems undisputable that evidence may be available and existent at a given" }, { "docid": "23305669", "title": "", "text": "answer. After careful consideration, we find no infirmity in our decision. The adequacy of a patent application’s disclosure is a mixed question of law and fact, on which the court must ultimately apply a legal standard to a complex set of facts. There can be no doubt that expert testimony will often aid in understanding the underlying factual context. But the resolution of the legal issue is for the court, Minnesota Mining & Mfg. Co. v. Carborundum Co., 155 F.2d 746, 749 (3 Cir. 1946); Watson v. Bersworth, 102 U.S.App.D.C. 187, 251 F.2d 898, 900, cert. denied, 356 U.S. 972, 78 S.Ct. 1135, 2 L.Ed.2d 1146 (1958), and when it is clear that the disclosure of the patent application does not meet the statutory standard, expert assistance is not necessary either in the district court or on review,. Cf. Kohn v. Eimer, 265 F. 900, 902 (2 Cir. 1920). That is the case here. This issue was fully briefed by both parties and we had the benefit of Judge Dooling’s exhaustive findings of fact, 341 F.Supp. 1303, based in large part on expert testimony concerning the relevant chemical concepts, in reaching our decision. We saw then, and we see now, no need for a remand. There is simply no room for plausible argument that the tranquilizing property of - meprobamate was disclosed in the patent application in accordance with the standard set out in section 112. Carter-Wallace relied only on the anticonvul-sant and muscle-paralyzant properties of meprobamate to establish patentability before the Patent Office, did not urge the tranquilizing property as an additional basis of patentability, and did not establish this property as it would have been obliged to do if it had relied upon it. It is apparent that neither of the Patent Examiners — who possessed considerable expertise in this field and were under a statutory obligation to conduct an independent examination of the merits of the application — understood the application to disclose the drug’s tranquilizing effect. At no point in the Patent Office proceedings was the tranquilizing property mentioned. At no point did the Patent Office" }, { "docid": "22197538", "title": "", "text": "applicable to the security of judgments that have passed into rent adjudicatam, is not allowable,) the bill had sought to carry that decree more effectually into execution, it would have been' free from legal objections, and equally conducive to the object in view.” And then, after quoting from Lord Redesdale, it adds: “ The bill in this case, as originally filed, before it was converted by amendment into a bill of review, and abating the allegations of error in the original decree, approximated to the character of such a bill as might have been sustained. The proofs show a case which, in our judgment, supports the conclusions of the decree, to the effect that the terms of compromise made by the adult parties to the suit (including the mother and guardian of the infant heirs of Alfred Bent) were advantageous to the said infants, and were so considered and accepted by the court in their behalf. But, so far as the present decree undertook to reverse and modify the decree of September, 1866, we think it is clearly erroneous. Still, although we feel obliged to reverse the present decree, we do not think that the bill should be absolutely dismissed. And, as the whole question between the parties has been fully'litigated on the proofs, it would be unreasonable to require that these should be taken over again. “ Our conclusion is, that the present decree must be reversed with costs, and that the cause be remanded to the court below, with directions to allow the complainants to amend their bill as they shall be advised, and with liberty to the defendants to answer any new matter introduced therein; and that all the proofs in the cause shall stand as proofs upon any future hearing, thereof, with liberty to either party to take additional proofs upon any new matter that may be put in issue by the amended pleadings.” The mandate contained an order in the language of the last paragraph. Although the former decree was reversed on the ground that the bill as it stood was technically a bill of" }, { "docid": "4044813", "title": "", "text": "in the first place, because it was premature. The final decree in Equity No. 67317 was entered on November 1, 1938, and appellant’s bill was filed on November 7, 1938. At that time the decree was still open to correction in the same proceeding by a motion for a new trial, the equivalent of the former petition for rehearing. While rehearing is available as a remedy there is no necessity for a bill of review ; consequently, the time for filing a bill of review does not begin until the time for filing a petition for rehearing has passed. The Supreme Court has stated that: “Bills of review are on two grounds: first, error of law apparent on the face of the record without further examination of matters of fact; second, new facts discovered since the decree, which should materially affect the decree and probably induce a different result.” A third ground, also, has been recognized, namely, fraud in procuring the decree. Appellant does not contend that there was fraud in the procuring of the decree or that any new matter of fact or evi dence.was discovered, after the entry of the decree, in Equity Cause No. 67317, which would probably induce a different result. The only other issue which could have been presented to the District Court, in the present case, therefore, by bill of review or by complaint in the nature of a bill of review was whether there was error of law apparent upon the face of the record in Equity Cause No. 67317. Appellant has further defined that issue by his statement that: “The genuine issue in the case is whether the impeached decrees are valid, i. e., whether the Court which entered them possessed jurisdiction in personam over appellant.” Assuming that this issue was properly presented by appellant’s complaint, it then became the duty of the court to consider it, upon the whole record in Equity Cause No. 67317, as a question of law arising upon the pleadings, the proceedings and the decree in that case. The burden was upon appellant to show to the" }, { "docid": "3523497", "title": "", "text": "trial before the district court is not limited to the record of the Board proceedings, and should not be rigidly limited to the procedures whereby that record was created. Every interference proceeding is founded on the threshold determination by the PTO that both parties are claiming the same invention. It is indeed a new ruling to hold that this material and dispositive fact can not be redetermined before the district court in a trial de novo. Although the majority holds that Conservolite was “precluded” from raising this issue at the Board’s interference hearing, the district court did not find preclusion, the parties did not argue preclusion, the PTO rules provide for discretion — and neither party raised the question of preclusion on this appeal. Perhaps PTO interference practice remains “highly arcane and specialized”, as the panel majority puts it. As seen in this case, however, when remedy by civil action is selected in the district court, the agency’s arcana dissolves in favor of the mainstream procedures of the Federal Rules. In a proceeding under 35 U.S.C. § 146 the parties can create a new record; they can present new witnesses, adduce new evidence, run new tests, conduct demonstrations and plant visits, and bring in experts; and in general do what is needed, and the district court allows, in order to ascertain the truth and decide the dispute. See Standard Oil Co. (Indiana) v. Montedison, S.p.A., 664 F.2d 356, 361, 212 USPQ 327, 332 (3d Cir.1981) (“action brought under 35 U.S.C. § 146 is a trial de novo ”), cert. denied, 456 U.S. 915, 102 S.Ct. 1769, 72 L.Ed.2d 174 (1982). The majority cites General Instrument Corp. v. Scientific-Atlanta, Inc., 995 F.2d 209,27 USPQ2d 1145 (Fed.Cir.1993), wherein this court sustained the decision of the district court not to consider a public use issue that had not been raised before the Board. This court reaffirmed, however, that “the district court may, in appropriate circumstances, exercise its discretion and admit testimony on issues even though they were not raised before the Board”. Id. at 214, 27 USPQ at 1149. The 1985 legislation did" }, { "docid": "907342", "title": "", "text": "the issue of Montedison’s fraud would have no effect on Phillips’ entitlement to priority and we do not reach it. III. AN OVERVIEW OF THE LEGAL PRINCIPLES A. Scope of Review An action brought under 35 U.S.C. § 146 is a trial de novo; the statute provides that the Patent Office record shall be admitted in the district court proceeding “without prejudice to the right of the parties to take further testimony.” See Frilette v. Kimberlin, 508 F.2d 205, 211 (3d Cir. 1974) (en banc), cert. denied, 421 U.S. 980, 95 S.Ct. 1983, 44 L.Ed.2d 472 (1975); Minnesota Mining & Manufacturing Co. v. Carborundum Co., 155 F.2d 746, 748 (3d Cir. 1946). Nevertheless, a section 146 proceeding is governed by the strict rule that the Board’s decision on priority, a “question of fact,” is not to be disturbed “unless the contrary is established by testimony which in character and amount carries thorough conviction.” Morgan v. Daniels, 153 U.S. 120, 125, 14 S.Ct. 772, 773, 38 L.Ed. 657 (1894); Stamicarbon, N. V. v. Chemical Construction Corp., 544 F.2d 645, 647 (3d Cir. 1976). As to our review of the district court, it is plenary with respect to legal issues but subject to Federal Rule of Civil Procedure 52(a) on factual matters. Stamicarbon, N. V. v. Chemical Construction Corp., 544 F.2d at 648. In this case, as one would expect, the appellants contend that this court should exercise plenary review of the decision of the district court. Phillips, on the other- hand, argues that the trial court’s findings should be reviewed in the same manner as in any other kind of law suit. While the proper construction of a patent application ultimately presents a legal issue, Methode Electronics, Inc. v. Elco Corp., 385 F.2d 138, 140 (3d Cir. 1967); Minnesota Mining & Manufacturing Co. v. Carborundum Co., 155 F.2d at 749, where the district court’s decision on the adequacy of the disclosures of a patent application is based on an evaluation of expert testimony, it has been held that the decision presents a mixed question of law and fact. Hinde v. Hot" }, { "docid": "22075252", "title": "", "text": "and profits on account of the infringement. Defendant having answered-this, testimony yas taken to show the structural identity of the “ Justrite ” and theGrier” lamps, and the cause'came to hearing, with the result that the District Court found substantial identity between the two lamps in all essential features of construction, sustained the right of plaintiffs to maintain the bill of review,\" and held that its former decree, entered pursuant to the mandate of the Circuit Court of Appeals, so fat as it held the reissue patent invalid, should be vacated' and set aside and a decree entered sustaining the validity of claim 4 of the-reissue, finding defendant guilty of infringement thereof, and plaintiffs entitled to ah accounting of profits and a perpetual injunction. From the decree thus entered an appeal .was taken to the Circuit Court of Appeals, which reversed it and remanded the cause with directions to reinstate the decree of January 5, 1916. 265 Fed. 481. To review this decision, the present writ of certiorari was allowed. 253 U. S. 482. The District Court, as will appear from an excerpt from its opinion reported in a note to' the opinion of the Circuit Court of Appeals, 265 Fed. 483, treated the case as one based upon a true bill of review, and this as resting not upon new matter that had arisen since the decree but upon error of law apparent on the face of the record without further examination of matters of fact. The Circuit Court of Appeals, upon a recital of the different steps in the litigation, regarded the situation as one of plaintiffs’ own creation, for the reason that after that court’s decision on the original bill but before the mandate went down, although apprised of the contrary decision of the District Court for the Southern District of New York in a cause to which they were parties, plaintiffs made no request to the Circuit Court of Appeals for the Third. Circuit to withhold its mandate; that, after the mandate went down and before a decree pursuant to it was entered in the court" }, { "docid": "11387151", "title": "", "text": "level now, under the majority opinion, appears to be dependent to a considerable extent upon the hindsight ability possessed by counsel. The district court did cite in its order the law of this circuit applicable to the present issue as found in Globe-Union, Inc. v. Chicago Telephone Supply Co., 103 F.2d 722, 728 (7Ih Cir. 1939). It is clear from a reading of that case that this court in following the leading case of Barrett Co. v. Koppers Co., 22 F.2d 395 (3d Cir. 1927), was not prepared to abandon all aspects of trial de novo in these proceedings when in the district court, and that this court regarded Barrett as clearly involving conduct approaching intentional or deliberate withholding: Counsel goes further and insists that the court in the Barrett case did not restrict the principle announced to situations where the evidence was deliberately withheld or otherwise procurable by the use of due diligence. We disagree with counsel. Every opinion must be read with reference to the facts upon which it is based. The Barrett case stands on facts clearly showing intentional withholding of evidence. In fact, even if counsel were correct, we would not go that far. To hold with counsel’s contention is tantamount to judicial abrogation of R.S. § 4915, 35 U.S.C.A. § 63. Such a contention would make it impossible for a plaintiff to meet the test laid down by the doctrine of Morgan v. Daniels, i. e., that the interference-judgment can be overcome “by testimony which in character and amount carries thorough conviction.” [153 U.S. 120, 14 S.Ct. 772, 38 L.Ed. 657.] Id. at 728. That this court properly interpreted Barrett is indicated in a later case in the Third Circuit under R.S. Section 4915 (now 35 U.S.C. § 146) in which that court, pointing out that the statute provides that the trial in the district court shall be without prejudice to the right to take further testimony, emphasized that in Barrett the plaintiffs had specifically instructed witnesses not to answer certain questions. Minnesota Mining & Mfg. Co. v. Carborundum Co., 155 F.2d 746, 748 (3d" }, { "docid": "4044812", "title": "", "text": "invoked only by a defendant not personally notified of the proceeding. Appellant, as defendant in Equity No. 67317, was personally notified and, therefore, is not entitled to invoke the remedy provided for in Section 118, title 28 of the United States Code. The new Federal Rules of Civil Procedure became effective on September 16, 1938. Consequently, they did not govern the procedure of Equity Cause No. 67317, but they did govern the procedure of the present case. The new rules contain no provision for bills of review or for a complaint in the nature of a bill of review. But we are advised that it was the intention of the rule-makers to preserve the remedy formerly available by bill of review. This intention appears in the following language of Rule 60(b) : “This rule does not limit the power of a court (1) to entertain an action to relieve a party from a judgment, order, or proceeding, * * Appellant’s use of a bill of review as a remedy in the present case was wrong, in the first place, because it was premature. The final decree in Equity No. 67317 was entered on November 1, 1938, and appellant’s bill was filed on November 7, 1938. At that time the decree was still open to correction in the same proceeding by a motion for a new trial, the equivalent of the former petition for rehearing. While rehearing is available as a remedy there is no necessity for a bill of review ; consequently, the time for filing a bill of review does not begin until the time for filing a petition for rehearing has passed. The Supreme Court has stated that: “Bills of review are on two grounds: first, error of law apparent on the face of the record without further examination of matters of fact; second, new facts discovered since the decree, which should materially affect the decree and probably induce a different result.” A third ground, also, has been recognized, namely, fraud in procuring the decree. Appellant does not contend that there was fraud in the procuring of the" }, { "docid": "22809772", "title": "", "text": "his remedy; and that although he may have suffered a wrong by the defendant’s want of good faith, he had not presented a case which required a court of equity to disregard the statute of frauds, because it had been used for the jmrpose of committing a fraud. As if a party to a contract of exchange had received a deed and kept the land; refusing to give a conveyance for the land given in exchange. But in this case there was nothing shown but a broach of promise and a scrambling possession, followed by litigation. The present application shows more perseverance and faith in the applicant than discretion or judgment; and presents not a single feature of a case proper for a bill of review. By Lord Chancellor Bacon’s rules, it was declared: “Ho bill of review shall be admitted except it contain either error in law appearing in the body of the decree without further examination of matters in fact, or some new matter which hath arisen in time after the decree; and not on any new proof which might have been used when the decree was made. Nevertheless, upon new proof that is- come to light after the decree was made, which could not possibly have been used at the time when the decree passed, a bill of review may be granted by the special license of the court and not otherwise.” We will not put ourselves in the position of seriously noticing the reasons offered for a review.of this case. Suffice it to say that the petitioner has not presented a single feature of a caso within the rules. He offers no new evidence, but what he might as well have produced before, and which, if it had been produced, would not have justified a decree in his favor. Motion denied." } ]

[ { "docid": "22090900", "title": "", "text": "word ‘spots’ means ‘light spots’ in the ’272 patent.” Id. at 15. The court thus concluded that “the meaning of the phrase ‘spots of different sizes’ can be understood from a careful reading of the claims, the specification, and the prosecution history” and that that meaning referred to the different sized spots of light generated by the light beam on the photoreceptor. Id. at 16. Consequently, the court agreed with Hewlett-Packard’s proposed construction and thus granted Hewlett-Packard summary judgment of no literal infringement because “[i]t is undisputed that the accused devices do not create light spots of different sizes” and summary judgment of no equivalent infringement because, by generating only single-sized spots of lights, the accused devices were specifically excluded from the scope of the claims. Id. at 18, 20. DISCUSSION. I. Summary judgment of non-infringement requires a twó-step analytical approach. First, the claims of the patent must be construed to determine their scope. See Carroll Touch, Inc. v. Electro Mechanical Sys., Inc., 15 F.3d 1573, 1576, 27 USPQ2d 1836, 1839 (Fed.Cir.1993). Second, a determination must be made as to whether the properly construed claims read on the accused device. See id. The first, step of this analysis— claim construction—is a question of law. See Markman v. Westview Instruments, Inc., 52 F.3d 967, 979, 34 USPQ2d 1321, 1329 (Fed.Cir.1995) (in banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). Accordingly, it falls upon the district court to discern the meaning of the claim language. See id. Because it is a legal question, our review of the district court’s claim construction is de novo. See Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456, 46 USPQ2d 1169, 1174 (Fed.Cir.1998) (in banc). The second step of this analysis—the determination of whether the properly construed claims read on the accused'device—is a question of fact. See Mannesmann Demag Corp. v. Engineered Metal Prods. Co., 793 F.2d 1279, 1282, 230 USPQ 45, 46 (Fed.Cir.1986). Thus, summary judgment of non-infringement can only be granted if, after viewing the alleged facts in the light most favorable to the non-movant, there is no genuine" } ]

[ { "docid": "20677575", "title": "", "text": "requires a party to perform each and every step or element of a claimed method or product.” BMC Res., Inc. v. Paymentech, LP., 498 F.3d 1373, 1378 (Fed.Cir.2007), overruled on other grounds by 692 F.3d 1301 (Fed. Cir.2012). “If any claim limitation is absent from the accused device, there is no literal infringement as a matter of law.” Bayer AG v. Elan Pharm. Research Corp., 212 F.3d 1241, 1247 (Fed.Cir.2000). If an accused product does not infringe an independent claim, it also does not infringe any claim depending thereon. See Wahpeton Canvas Co. v. Frontier, Inc., 870 F.2d 1546, 1553 (Fed.Cir.1989). However, “[o]ne may infringe an independent claim and not infringe a claim dependent on that claim.” Monsanto Co. v. Syngenta Seeds, Inc., 503 F.3d 1352, 1359 (Fed.Cir.2007) (quoting Wahpeton Canvas, 870 F.2d at 1552) (internal quotations omitted). A product that does not literally infringe a patent claim may still infringe under the doctrine of equivalents if the differences between an individual limitation of the claimed invention and an element of the accused product are insubstantial. See Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 24, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). The patent owner has the burden of proving infringement and must meet its burden by a preponderance of the evidence. See SmithKline Diagnostics, Inc. v. Helena Lab. Corp., 859 F.2d 878, 889 (Fed.Cir.1988) (citations omitted). When an accused infringer moves for summary judgment of non-infringement, such relief may be granted only if one or more limitations of the claim in question does not read on an element of the accused product, either literally or under the doctrine of equivalents. See Chimie v. PPG Indus., Inc., 402 F.3d 1371, 1376 (Fed.Cir. 2005); see also TechSearch, L.L.C. v. Intel Corp., 286 F.3d 1360, 1369 (Fed.Cir.2002) (“Summary judgment- of noninfringement is ... appropriate where the patent owner’s proof is deficient in meeting an essential part of the legal standard for infringement, because such failure will render all other facts immaterial,”). Thus, summary judgment of non-infringement can only be granted if, after viewing the facts in the light most" }, { "docid": "23173240", "title": "", "text": "Foundation is the current owner of the ’833 patent and Hoffman-LaRoche has an exclusive license thereunder. Genentech produces, by a recombinant DNA method, a human growth hormone product it calls Protropin. The structure of Protropin differs from the structure identified in Figure 2 of the ’833 patent in that Protropin contains 192 amino acids instead of 190. Specifically, Protro-pin has an additional methionine at the amino end of the sequence and, like natural HGH, it has an additional glutamine after position 68 and slightly different proteins in the positions corresponding to position 73 (glutamic acid rather than glutamine), 106 (aspartic acid instead of asparagine) and 108 (asparagine instead of aspartic acid). Genentech has also produced Protropin II, which apparently has not yet been approved for marketing by the Federal Drug Administration. The parties do not dispute that Protropin II has a structure identical to that of natural HGH. Believing that Genentech’s activities relating to Protropin and Protropin II are in violation of its rights under the ’833 patent, HRF filed suit against Genentech seeking both injunctive and monetary relief. The eight claims of the ’833 patent asserted by HRF are: I. A method of producing synthetic human pituitary growth hormone which comprises: a. forming an unbridged polypeptide chain of amino acid residues in the sequence of natural human pituitary growth hormone; b. generating sulfhydryl groups on the cysteine residues in said polypeptide chain; c. oxidizing said sulfhydryl groups under conditions effective to form disulfide bridges between said cysteine residues, thereby forming two intramo-lecular rings in the polypeptide chain. 3. A method of producing a substance having growth-promoting activity which comprises: a. forming an unbridged polypeptide chain of amino acid residues in a sequence corresponding to FIG. 2 or 3 of the accompanying drawing; b. generating sulfhydryl groups on the cysteine residues in said polypeptide chain; c. oxidizing said sulfhydryl groups under conditions effective to form disulfide bridges between said cysteine residues, thereby forming two intramo-lecular rings in the polypeptide chain. II. A method of producing a substance having growth-promoting activity which comprises: a. forming an unbridged polypeptide chain of amino" }, { "docid": "1322766", "title": "", "text": "(paragraph structure altered). 3. Literal Infringement a. Discussion To determine whether an accused device literally infringes a patent claim, courts apply a two-step analysis. See, e.g., Watts v. XL Sys., Inc., 232 F.3d 877, 880 (Fed.Cir.2000); Laitram Corp. v. Morehouse Indus., Inc., 143 F.3d 1456, 1461 (Fed.Cir.1998). First, the court construes the claims to determine their scope as matter of law. See Markman, 517 U.S. at 370, 116 S.Ct. 1384. Second, the court determines whether the claims cover the accused device. See, e.g., Watts, 232 F.3d at 880; Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454 (Fed.Cir.1998) (en banc). The only limitation of claims 4-9 of the ’698 patent that HMR/TKT asserts it does not literally infringe is “DNA encoding the mature erythropoietin amino acid sequence of FIG. 6.” See, e.g., HMR/ TKT’s Reply Br. After Trial at 26-27; HMR/TKT’s Opening Br. After Trial at 10-11. As discussed, supra, the Court conducted the first step of the inquiry and construed the term “DNA encoding” to mean “the genetic instructions for” the “mature erythropoietin amino acid sequence of FIG. 6.” To conduct the second step, the Court must compare the properly construed claim with the accused product to determine whether the accused product meets each and every limitation. Bayer AG v. Elan Pharm. Research Corp., 212 F.3d 1241, 1247-48 (Fed.Cir.2000); Young Dental Mfg. Co. v. Q3 Special Prods., Inc., 112 F.3d 1137, 1141 (Fed.Cir.1997). HMR/TKT argues that the claims require the genetic instructions for an EPO with the fully realized, secreted 166 amino acid sequence of Figure 6. See HMR/ TKT’s Reply Br. After Trial at 26-27; HMR/TKT’s Opening Br. After Trial at 10-11. In support it points to the Court’s ruling in Amgen I, in the context of the ’080 patent, that the “mature erythro-poietin amino acid sequence of FIG. 6” is “the fully realized form of the amino acid sequence of Figure 6,” Amgen I, 126 F.Supp.2d at 100, that is, one with a 166 amino acid sequence. HMR/TKT’s argument fails to persuade the Court because “the mature erythro-poietin amino acid sequence of FIG 6” in the" }, { "docid": "14844186", "title": "", "text": "MIRCERA® contains the sequence of amino acids that defines human EPO in claim 1 of the '422 patent. Id. at 70. We see no error in the district court’s grant of summary judgment that MIRCERA® literally infringes claim 1 of the '422 patent or its ruling denying Roche’s motion for JMOL of non-infringement, which sustained the jury’s verdict that MIRCERA® literally infringes claims 3, 7, and 8 of the '933 patent. As a preliminary matter, no genuine issues of material fact stand in the way of adjudication by summary judgment of the issue of whether MIRCERA® infringes claim 1 of the '422 patent. The court’s determination of infringement followed from its application of its construction of two terms in claim 1 to the undisputed facts of the case. The first term is “human erythropoietin”; the second term is the source limitation “purified from mammalian cells grown in culture.” '422 patent col.38 11.37-41. We conclude that the court correctly construed those terms and that, in view of that claim construction, Amgen was entitled to summary judgment that MIRCERA® infringed claim 1 of the '422 patent. Because the source limitation of claim 1 of the '422 patent is, for purposes of Roche’s infringe ment contentions, the same as the source limitation recited in the asserted claims of the '933 patent, we similarly conclude that a reasonable jury could have found that MIRCERA® infringed claims 3, 7, and 8 of the '933 patent. MIRCERA® comprises “human erythropoietin” because it contains “[a] protein having the amino acid sequence of human erythropoietin, such as the amino acid sequence of EPO isolated from human urine,” Markman, 494 F.Supp.2d at 64. Roche’s internal documents and FDA representations reveal that MIRCERA®, or peg-EPO, comprises a protein having the amino acid sequence of human erythropoietin. Amgen, 581 F.Supp.2d at 202; see also id. at 172 (“[T]he resulting glycosylated human EPO polypeptide product [of Roche’s manufacturing process] contains the identical amino acid sequence as naturally occurring human EPO.” (quotation marks omitted)). Those documents, as well as expert testimony, also indicate that the loss of a hydrogen atom, either from a" }, { "docid": "20677576", "title": "", "text": "insubstantial. See Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 24, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). The patent owner has the burden of proving infringement and must meet its burden by a preponderance of the evidence. See SmithKline Diagnostics, Inc. v. Helena Lab. Corp., 859 F.2d 878, 889 (Fed.Cir.1988) (citations omitted). When an accused infringer moves for summary judgment of non-infringement, such relief may be granted only if one or more limitations of the claim in question does not read on an element of the accused product, either literally or under the doctrine of equivalents. See Chimie v. PPG Indus., Inc., 402 F.3d 1371, 1376 (Fed.Cir. 2005); see also TechSearch, L.L.C. v. Intel Corp., 286 F.3d 1360, 1369 (Fed.Cir.2002) (“Summary judgment- of noninfringement is ... appropriate where the patent owner’s proof is deficient in meeting an essential part of the legal standard for infringement, because such failure will render all other facts immaterial,”). Thus, summary judgment of non-infringement can only be granted if, after viewing the facts in the light most favorable to the non-movant, there is no genuine issue as to whether the accused product is covered by the claims (as construed by the court). See Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1304 (Fed.Cir.1999). “[A] method claim is not directly infringed by the sale of an apparatus even though it is capable of performing only the patented method. The sale of the apparatus is not a sale of the method. A method claim is directly infringed only by one practicing the patented method.” Joy Technologies, Inc. v. Flakt, Inc., 6 F.3d 770, 775 (Fed.Cir.1993). Therefore, “an accused infringer must perform all the steps of the claimed method, either personally or through another acting under his direction or control.” Akamai Technologies, Inc. v. Limelight Networks, Inc., 692 F.3d 1301, 1307 (Fed.Cir.2012). With respect to apparatus claims, “to infringe a claim that recites capability and not actual operation, an accused device ‘need only be capable of operating in the described mode.’ ” Finjan, Inc. v. Secure Computing Corp., 626 F.3d 1197, 1204 (Fed.Cir.2010) (citing" }, { "docid": "15822671", "title": "", "text": "v. Hilton Davis Chem. Co., 520 U.S. 17, 24, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). The patent owner has the burden of proving infringement and must meet its burden by a preponderance of the evidence. See SmithKline Diagnostics, Inc. v. Helena Lab. Corp., 859 F.2d 878, 889 (Fed.Cir.1988) (citations omitted). When an accused infringer moves for summary judgment of non-infringement, such relief may be granted only if one or more limitations of the claim in question does not read on an element of the accused product, either literally or under the doctrine of equivalents. See Chimie v. PPG Indus., Inc., 402 F.3d 1371, 1376 (Fed.Cir.2005); see also TechSearch, L.L.C. v. Intel Corp., 286 F.3d 1360, 1369 (Fed.Cir.2002) (“Summary judgment of noninfringement is ... appropriate where the patent owner’s proof is deficient in meeting an essential part of the legal standard for infringement, because such failure will render all other facts immaterial.”). Thus, summary judgment of non-infringement can only be granted if, after viewing the facts in the light most favorable to the non-movant, there is no genuine issue as to whether the accused product is covered by the claims (as construed by the court). See Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1304 (Fed.Cir.1999). For there to be infringement under the doctrine of equivalents, the accused product or process must embody every limitation of a claim, either literally or by an equivalent. Warner-Jenkinson, 520 U.S. at 41, 117 S.Ct. 1040. An element is equivalent if the differences between the element and the claim limitation are “insubstantial.” Zelinski v. Brunswick Corp., 185 F.3d 1311, 1316 (Fed.Cir.1999). One test used to determine “insubstantiality” is whether the element performs substantially the same function in substantially the same way to obtain substantially the same result as the claim limitation. See Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 608, 70 S.Ct. 854, 94 L.Ed. 1097 (1950). This test is commonly referred to as the “function-way-result” test. The mere showing that an accused device is equivalent overall to the claimed invention is insufficient to establish infringement under" }, { "docid": "8842251", "title": "", "text": "and a second amino acid sequence which consists of an amino acid sequence having at least 90% sequence identity with the contiguous amino acid sequence of amino acids 1649 to 2332 of the native, mature C domain of human Factor VIII and optionally up to 10 amino acids of the human Factor VIII B domain sequence contiguous to amino acid 1649 as encoded by the polynucleotide present in plasmid pSVF8-200 (ATCC No. 40190); wherein said nucleic acid encodes said first and second amino acid sequences, and further wherein said recombinant protein is capable of coagulation activity in a coagulation activity assay. . Claim 1 of the '447 patent reads: 1. A composition comprising Factor VIII: C proteins, wherein the Factor VIII: C proteins consist essentially of a first polypeptide comprising an amino acid sequence of the A domain of human Factor VIII: C as encoded by the polynucleotide present in plasmid pSVF8-200 (ATCC No. 40190) or an amino acid sequence that differs therefrom in having not more than 10 number % amino acid substitutions, and a second polypeptide comprising an amino acid sequence of the C domain of human Factor VIII: C as encoded by the polynucleotide present in plasmid pSVF8-200 (ATCC No. 40190) or an amino acid sequence that differs therefrom in having not more than 10 number % amino acid substitutions. . In Boehringer Ingelheim International GmbH v. Barr Laboratories, Inc., 592 F.3d 1340, 1349 (Fed.Cir.2010), a case involving obviousness-type double patenting, we suggested in passing that a patent term extension might apply only to specific claims. That dictum was not cited in support of either party’s position in this case. . As the district court found, this deletion range forms a group of protein variants numbering about 68,000. Genetics, 687 F.Supp.2d at 498. DYK, Circuit Judge, concurring-in-part and dissenting-in-part. I join Parts I and II of the majority’s opinion, but I respectfully dissent from Part III. In my view, the majority erred in holding that the asserted claims of the '112 patent would not render obvious the asserted claims of the '620 and '447 patents (collectively the" }, { "docid": "20571264", "title": "", "text": "68 and added claims 69-75. Claims 70-72, which issued as claims 2-4 of the ’080 patent, provided as follows: 70. An isolated erythropoietin glyco-protein having the in vivo biological ac tivity of causing bone marrow cells to increase production of reticulocytes and red blood cells, wherein said erythro-poietin glycoprotein comprises the mature erythropoietin amino acid sequence of Figure 6 and is not isolated from human urine. 71. A non-naturally occurring erythro-poietin glycoprotein having the in vivo biological activity of causing bone marrow cells to increase production of reti-culocytes and red blood cells, wherein said erythropoietin glycoprotein comprises the mature erythropoietin amino acid sequence of Figure 6. 72. A pharmaceutical composition comprising a therapeutically effective amount [of] an erythropoietin glycopro-tein product according to claim 69, 70 or 71. As seen, after the first preliminary amendment, the claims of the ’556 application broadly encompassed an isolated human EPO product. The application claimed an EPO product made using the human EPO DNA sequence set out in Figure 6 or the monkey EPO DNA sequence set out in Figure 5. With the second preliminary amendment, the patentee added claim 68, which claimed an EPO product made using the amino acid sequence for EPO set out in Figure 6 “or a fragment thereof.” With the third preliminary amendment, the patentee removed all references to non-human monkey EPO and also deleted claims for an EPO product made using “a fragment” of the amino acid sequence of Figure 6. Instead, as of the third preliminary amendment, the ’556 application claimed only a human EPO product having the complete amino acid sequence of Figure 6. B. In Amgen I, the district court found that the amendments to the ’556 application were made to preempt a double-patenting rejection based on claim 1 of the ’933 patent. 126 F.Supp.2d at 135. The district court held that an amendment made to avoid a double-patenting rejection is not an amendment related to patentability. Id. at 136. Therefore, the court held that Amgen was not estopped from claiming that EPO with a 165-amino acid sequence infringed the asserted claims of the ’080 patent" }, { "docid": "7555726", "title": "", "text": "polypeptide of the IFN-a type coded for on expression by any of the foregoing DNA sequences or inserts, and having operatively linked thereto an expression control sequence; transforming an appropriate host with said recombinant DNA molecule; culturing said host; and collecting said polypeptide. Id. at col. 37, 11. 18-40. Even a cursory review of the claims reveals that they recite the specific recombinant DNA inserts isolated by Dr. Weissmann, and their use. Many years later, scientists sequenced Dr. Weissmann’s DNA inserts and discovered that they code for a subtype of leukocyte interferon known as IFN-a-1. Schering sued Amgen, alleging that Am-gen’s consensus interferon product infringes the ’901 patent. Amgen’s product is a synthetic polypeptide that does not correspond to any naturally occurring interferon subtype. Instead, Amgen reviewed the amino acid sequence of each known IFN-a subtype (interferon, like all peptides, is a string of amino acids, each of which is coded for by one of several DNA sequences). Based on this review, Amgen produced a recombinant DNA sequence that codes for an amino acid sequence that is a consensus, or average, of the sequences found in the natural IFN-a subtypes. Thus, Amgen produces an amino acid sequence, which at each position contains an amino acid present in one or more known IFN-a subtype, but does not duplicate the amino acid sequence of any single IFN-a subtype. II. This court reviews the district court’s grant of Schering’s summary judgment motion without deference, applying the same standard as the trial court. See Nobelpharma AB v. Implant Innovations, Inc., 141 F.3d 1059, 1064, 46 USPQ2d 1097, 1103 (Fed.Cir.1998), In applying a de novo standard, this court examines the record in the light most favorable to the non-movant, Amgen. See id. Following its pre-trial Markman hearing, the district court construed the claims of the ’901 patent. Schering contends that the district court erred in its interpretation of the term “polypeptide of the IFN-a type.” This court reviews the central question of claim interpretation without deference. See Key Pharm. v. Hercon Lab. Corp., 161 F.3d 709, 713, 48 USPQ2d 1911, 1914 (Fed.Cir.1998). Therefore, notwithstanding the" }, { "docid": "20571259", "title": "", "text": "to Dr. Lin’s discovery. Id. at 319. Thus, the district court concluded that HMR/TKT “failed to persuade the Court by clear and convincing evidence that the asserted claims of [Amgen’s patents] were obvious in light of Sugimoto.” Id. at 325. HMR/TKT appeals the district court’s ruling. We have considered the various arguments made by HMR/TKT on the obviousness issue. Having done so, we see no reason to disturb the ruling of the district court that HMR/TKT failed to establish that claim 1 of the ’422 patent was obvious in view of the Sugimoto patent. II. The ’080 Patent As seen, in Amgen III Doctrine of Equivalents Judgment, the district court ruled that claims 2-4 of the ’080 patent were not invalid and that Amgen was not estopped from asserting infringement under the doctrine of equivalents. 287 F.Supp.2d at 160. Accordingly, the court reinstated its vacated finding in Amgen I that claims 2-4 of the ’080 patent were infringed under the doctrine of equivalents by HMR/TKT’s HMR4396 product. Id. The only issue before us on appeal is infringement under the doctrine of equivalents. Claims 2-4 provide: 2. An isolated erythropoietin glycopro-tein having the in vivo biological activity of causing bone marrow cells to increase production of reticulocytes and red blood cells, wherein said erythropoietin glyco-protein comprises the mature erythro-poietin amino acid sequence of FIG. 6 and is not isolated from human urine. 3. A non-naturally occurring erythro-poietin glycoprotein having the in vivo biological activity of causing bone marrow cells to increase production of reti-culocytes and red blood cells, wherein said erythropoietin glycoprotein comprises the mature erythropoietin amino acid sequence of FIG. 6. 4. A pharmaceutical composition comprising a therapeutically effective amount [of] an erythropoietin glycopro-tein product according to claim 1, 2 or 3. ’080 patent, col. 38, ll. 39-53. Claims 2-4 of the ’080 patent each contain the limitation that the “erythropoietin glycoprotein comprises the mature erythropoietin amino acid sequence of FIG. 6.” The sequence shown in Figure 6 of the ’080 patent has a DNA sequence coding for 166 amino acids. However, as noted above, mature human EPO actually contains" }, { "docid": "15822670", "title": "", "text": "to perform each and every step or element of a claimed method or product.” BMC Res., Inc. v. Paymentech, L.P., 498 F.3d 1373, 1378 (Fed.Cir.2007), overruled on other grounds by 692 F.3d 1301 (Fed.Cir.2012). “If any claim limitation is absent from the accused device, there is no literal infringement as a matter of law.” Bayer AG v. Elan Pharm. Research Corp., 212 F.3d 1241, 1247 (Fed.Cir.2000). If an accused product does not infringe an independent claim, it also does not infringe any claim depending thereon. See Wahpeton Canvas Co. v. Frontier, Inc., 870 F.2d 1546, 1553 (Fed.Cir.1989). However, “[o]ne may infringe an independent claim and not infringe a claim dependent on that claim.” Monsanto Co. v. Syngenta Seeds, Inc., 503 F.3d 1352, 1359 (Fed.Cir.2007) (quoting Wahpeton Canvas, 870 F.2d at 1552) (internal quotations omitted). A product that does not literally infringe a patent claim may still infringe under the doctrine of equivalents if the differences between an individual limitation of the claimed invention and an element of the accused product are insubstantial. See Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 24, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). The patent owner has the burden of proving infringement and must meet its burden by a preponderance of the evidence. See SmithKline Diagnostics, Inc. v. Helena Lab. Corp., 859 F.2d 878, 889 (Fed.Cir.1988) (citations omitted). When an accused infringer moves for summary judgment of non-infringement, such relief may be granted only if one or more limitations of the claim in question does not read on an element of the accused product, either literally or under the doctrine of equivalents. See Chimie v. PPG Indus., Inc., 402 F.3d 1371, 1376 (Fed.Cir.2005); see also TechSearch, L.L.C. v. Intel Corp., 286 F.3d 1360, 1369 (Fed.Cir.2002) (“Summary judgment of noninfringement is ... appropriate where the patent owner’s proof is deficient in meeting an essential part of the legal standard for infringement, because such failure will render all other facts immaterial.”). Thus, summary judgment of non-infringement can only be granted if, after viewing the facts in the light most favorable to the non-movant, there" }, { "docid": "7660238", "title": "", "text": "claim 1 of U.S. Patent 5,710,001 (“the '001 patent”); claim 1 of U.S. Patent 5,753,441 (“the '441 patent”); and claims 1 and 2 of U.S. Patent 6,033,857 (“the '857 patent”). The challenged composition claims cover two “isolated” human genes, BRCAl and BRCA2 (collectively, “BRCAl/2 ” or “BRCA ”), and certain alterations, or mutations, in these genes associated with a predisposition to breast and ovarian cancers. Representative composition claims include claims 1, 2, and 5 of the '282 patent: 1. An isolated DNA coding for a BRCAl polypeptide, said polypeptide having the amino acid sequence set forth in SEQ ID NO:2. 2. The isolated DNA of claim 1, wherein said DNA has the nucleotide sequence set forth in SEQ ID NO:l. 5. An isolated DNA having at least 15 nucleotides of the DNA of claim 1. '282 patent col. 153 1.55 — col. 154 1.56. SEQ ID NO:2 depicts the amino acid sequence of the BRCAl protein, and SEQ ID NO:l depicts the nucleotide sequence of the BRCAl DNA coding region; the latter sequence is colloquially referred to as cDNA. Id. col. 19 11.48-50. All but one of the challenged method claims cover methods of “analyzing” or “comparing” a patient’s BRCA sequence with the normal, or wild-type, sequence to identify the presence of cancer-predisposing mutations. Representative method claims include claims 1 of the '999 and '001 patents: 1. A method for detecting a germline alteration in a BRCAl gene, said alteration selected from the group consisting of the alterations set forth in Tables 12A, 14, 18 or 19 in a human which comprises analyzing a sequence of a BRCAl gene or BRCAl RNA from a human sample or analyzing a sequence of BRCAl cDNA made from mRNA from said human sample with the proviso that said germline alteration is not a deletion of 4 nucleotides corresponding to base numbers 4184^4187 of SEQ ID NO: 1. '999 patent col. 161 11.17-25 (emphases added). 1. A method for screening a tumor sample from a human subject for a somatic alteration in a BRCA1 gene in said tumor which comprises [ ] comparing a" }, { "docid": "22818968", "title": "", "text": "be lightly disregarded: Fig. 6 thus serves to identify the primary structural conformation (amino acid sequences) of mature human EPO as including 166 specified amino acid residues (estimate M.W.=18,399). Also revealed in the Figure is the DNA sequence coding for a 27 residue leader sequence along with 5' and 3' DNA sequences which may be significant to promoter/operator functions of the human gene operon. Sites for potential glycosylation of the mature human EPO polypeptide are designated in the Figure by asterisks. It is worthy of note that the specific amino acid sequence of Fig. 6 likely constitutes that of a naturally occurring allelic form of human erythro-poietin. Support for this position is found in the results of continued efforts at sequencing of urinary isolates of human erythropoietin which provided the finding that a significant number of er-ythropoietin molecules therein have a methionine at residue 126 as opposed to a serine as shown in the Figure. '080 patent, col. 21, fines 29-40. When the district court revisited the “Figure 6” issue, it concluded that the language of the claims, read in conjunction with the portion of the specification excerpted above, clearly identified the mature erythropoietin amino acid sequence as exactly depicted in Figure 6. In so doing, the court expressly rejected Amgen’s contention that the claim should be read as covering the mature amino acid sequence, of erythropoietin, whatever its number of amino acids. Amgen, 126 F.Supp.2d at 100, 57 USPQ2d at 1470 (“Had Amgen claimed only ‘the mature erythropoietin amino acid sequence’ without associating or linking that amino acid sequence to Figure 6 its .argument that its claims cover whatever sequence (whether it contained 165 or 166 amino acids) is ultimately secreted by the cell might have more momentum.”). The district court therefore found at the close of Amgen’s case that HMR4396 does not literally infringe the asserted claims of the '080 patent. The issue of infringement under the doctrine of equivalents was much closer, and likewise centered on the “Figure 6” limitation. The district court concluded that Amgen had proven by a preponderance of the evidence that the 165" }, { "docid": "17418717", "title": "", "text": "20 of U.S. Patent 5,747,282 (“the '282 patent”); claims 1, 6, and 7 of U.S. Patent 5,837,492 (“the '492 patent”); claim 1 of U.S. Patent 5,693,473 (“the '473 patent”); claim 1 of U.S. Patent 5,709,999 (“the '999 patent”); claim 1 of U.S. Patent 5,710,001 (“the '001 patent”); claim 1 of U.S. Patent 5,753,441 (“the '441 patent”); and claims 1 and 2 of U.S. Patent 6,033,857 (“the '857 patent”). The challenged composition claims cover two “isolated” human genes, BRCAl and BRCA2 (collectively, “BRCAl/2 ” or “BRCA ”), and certain alterations, or mutations, in these genes associated with a predisposition to breast and ovarian cancers. Representative composition claims include claims 1, 2, and 5 of the '282 patent: 1. An isolated DNA coding for a BRCAl polypeptide, said polypeptide having the amino acid sequence set forth in SEQ ID NO: 2. 2. The isolated DNA of claim 1, wherein said DNA has the nucleotide sequence set forth in SEQ ID NO: 1. 5. An isolated DNA having at least 15 nucleotides of the DNA of claim 1. SEQ ID NO: 2 depicts the amino acid sequence of the BRCAl protein, and SEQ ID NO: 1 depicts the nucleotide sequence of the BRCAl DNA coding region. '282 patent col.19 11.48-50. All but one of the challenged method claims cover methods of “analyzing” or “comparing” a patient’s BRCA sequence with the normal, or wild-type, sequence to identify the presence of cancer-predisposing mutations. Representative method claims include claim 1 of the '999 and '001 patents: 1. A method for detecting a germline alteration in a BRCAl gene, said alteration selected from the group consisting of the alterations set forth in Tables 12A, 14, 18 or 19 in a human which comprises analyzing a sequence of a BRCAl gene or BRCAl RNA from a human sample or analyzing a sequence of BRCAl cDNA made from mRNA from said human sample with the proviso that said germline alteration is not a deletion of 4 nucleotides corresponding to base numbers 4184-4187 of SEQ ID NO: 1. '999 patent claim 1 (emphases added). 1. A method for screening a" }, { "docid": "22845621", "title": "", "text": "district court granted Genentech’s motion and issued an injunction. Novo Nordisk of North Am., Inc. v. Genentech, Inc., No. 94 Civ. 8634(CBM), 1995 WL 512171, 1995 U.S. Dist. LEXIS 12588 (S.D.N.Y. Aug. 28,1995). On appeal this court vacated the injunction. Novo Nordisk of North Am., Inc. v. Genentech, Inc., 77 F.3d 1364, 37 USPQ2d 1773 (Fed.Cir.1996). We held that the district court clearly erred in finding that Gen-entech established a likelihood of proving infringement of the ’980 patent because that finding was based on an improper construction of claim 2 of the patent. Based upon the specification and prosecution history, we concluded that because the claim used the phrase “human growth hormone unaccompanied by ... other extraneous protein,” it was limited to processes for directly expressing either hGH or met-hGH. Id. at 1371, 37 USPQ2d at 1779. Because the parties agreed that Novo did not use direct expression to produce these proteins, we concluded that Novo did not infringe the patent. Id. Upon returning to the district court, Gen-entech asserted its newly issued U.S. Patent 5,424,199. The ’199 patent has the same specification as the ’980 patent and contains a single claim directed to: [a] method- of producing a protein consisting essentially of amino acids 1-191 of human growth hormone comprising: (a) expressing in a transformant bacterium, DNA coding for a human growth hormone conjugate protein, which conjugate protein consists essentially of amino acids 1-191 of human growth hormone as set forth in combined Figs. 1 and 3 unaccompanied by the leader sequence of human growth hormone or other extraneous protein bound thereto and an additional amino acid sequence which is specifically cleavable by enzymatic action, and (b) cleaving extracellulariy said conjugate protein by enzymatic action to produce said protein consisting essentially of amino acids 1-191 of human growth hormone. This claim differs from the claim adjudicated in the prior case in reciting that the encoded protein has an additional amino acid sequence and includes the step of cleaving this conjugate protein. This process of expressing a DNA encoding a conjugate protein and using an enzyme to cleave off an" }, { "docid": "22819018", "title": "", "text": "hearing, instead choosing to take the matter under advisement. See 126 F.Supp.2d at 87, 57 USPQ2d at 1459. . The district court held that every other limitation of the asserted claims in the '698 patent were met literally by the accused product/process. Amgen, 126 F.Supp.2d at 132-33, 57 USPQ2d at 1493. Thus, whether equivalent infringement occurred turned on whether the \"Figure 6” limitation was equivalently met. . Amgen argues: \"The specification describes the mature amino acid sequence of human EPO as 'including' — not 'limited to’— the 1-166 sequence. Properly construed, Lin's claimed sequence — the mature sequence — includes the fully processed form of any glycoprotein having the Figure 6 sequence. That includes both the 1-165 and the 1-166 amino acid sequences of Figure 6. Only this construction affords 'mature' its proper meaning, and includes Lin's preferred embodiment.” . Claim 5 claims \"[t]he process of claim 4 wherein said promoter DNA is viral promoter DNA.” Claim 7 claims ”[th]e process of claim 6 wherein said vertebrate cells further comprise amplified marker gene DNA.” Claim 8 claims \"[t]he process of claim 7 wherein said amplified marker gene DNA is Dihydrofolate reductase (DHFR) gene DNA.” And claim 9 claims ”[t]he process according to claims 2, 4 and 6 wherein said cells are mammalian cells.” . The basis for this argument is that claim 2 of the '698 patent recites recombinant EPO “isolated from the host cell or the medium of its growth.” Therefore, asserts TKT, “Amgen also knew how to claim what it now seeks, but failed to do so.” . The importance of this distinction is that, because it is scientifically arguable that viral DNA originates in the human genome, the viral promoter DNA that TKT employs thus might not fall within the meaning of the claim. . We note also that the trial court granted summary judgment of infringement of the product claims of the '349 patent. It modified its summary judgment finding (but reached the same result) with respect to the \"controlling transcription” limitation in light of extensive trial testimony. Amgen, 126 F.Supp.2d at 118, 57 USPQ2d at" }, { "docid": "1322765", "title": "", "text": "for resolving the infringement issue, as claims 5, 7, 8, and 9 are dependent. Claim 4: A process for the production of a glyco-sylated erythropoietin polypeptide having the in vivo biological property of causing bone marrow cells to increase production of reticulocytes and red blood cells comprising the steps of: (a) growing, under suitable nutrient conditions, vertebrate cells comprising promoter DNA, other than human erythropoietin promoter DNA, operatively linked to DNA encoding the mature erythropoiet-in amino acid sequence of FIG. 6; and (b) isolating said glycosylated erythro-poietin polypeptide expressed by said cells. ’698 Patent, Ex. 1, col. 38: 37-47 (paragraph structure altered). Claim 6: A process for the production of a glyco-sylated erythropoietin polypeptide having the in vivo biological property of causing bone marrow cells to increase production of reticulocytes and red blood cells comprising the steps of: (a) growing under suitable nutrient conditions, vertebrate cells comprising amplified DNA encoding the mature erythropoiet-in amino acid sequence of FIG. 6; and (b) isolating said glycoslated erythro-poietin polypeptide expressed by said cells. Id. at col. 38: 50-58 (paragraph structure altered). 3. Literal Infringement a. Discussion To determine whether an accused device literally infringes a patent claim, courts apply a two-step analysis. See, e.g., Watts v. XL Sys., Inc., 232 F.3d 877, 880 (Fed.Cir.2000); Laitram Corp. v. Morehouse Indus., Inc., 143 F.3d 1456, 1461 (Fed.Cir.1998). First, the court construes the claims to determine their scope as matter of law. See Markman, 517 U.S. at 370, 116 S.Ct. 1384. Second, the court determines whether the claims cover the accused device. See, e.g., Watts, 232 F.3d at 880; Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454 (Fed.Cir.1998) (en banc). The only limitation of claims 4-9 of the ’698 patent that HMR/TKT asserts it does not literally infringe is “DNA encoding the mature erythropoietin amino acid sequence of FIG. 6.” See, e.g., HMR/ TKT’s Reply Br. After Trial at 26-27; HMR/TKT’s Opening Br. After Trial at 10-11. As discussed, supra, the Court conducted the first step of the inquiry and construed the term “DNA encoding” to mean “the genetic instructions for” the “mature erythropoietin" }, { "docid": "1322764", "title": "", "text": "Nos. 664 and 665]. As a result, HMR/TKT presented its case on these issues at the remand trial. HMR/TKT was also allowed to present its defense that it does not literally infringe claims 4-9 of the ’698 patent under the reverse doctrine of equivalents. The Court decided to entertain such an argument because the facts that form the reverse doctrine of equivalents defense were always a part of HMR/TKT’s interrogatory responses. In Wright Medical Technology, Inc. v. Osteonics Corp., 122 F.3d 1440, 1445 (Fed.Cir.1997), the Federal Circuit remanded a case to the district court so it could determine the doctrine of equivalents issue even though the patentee had not argued equivalents, on the basis that the patentee had already introduced evidence in support of this argument. The analysis in Wright, although it addresses the doctrine of equivalents and not the reverse doctrine, is applicable here. Therefore, the Court afforded HMR/TKT the opportunity to present its defense and Amgen the opportunity to rebut. 2. The Claims at Issue Claims 4 and 6 are the critical claims for resolving the infringement issue, as claims 5, 7, 8, and 9 are dependent. Claim 4: A process for the production of a glyco-sylated erythropoietin polypeptide having the in vivo biological property of causing bone marrow cells to increase production of reticulocytes and red blood cells comprising the steps of: (a) growing, under suitable nutrient conditions, vertebrate cells comprising promoter DNA, other than human erythropoietin promoter DNA, operatively linked to DNA encoding the mature erythropoiet-in amino acid sequence of FIG. 6; and (b) isolating said glycosylated erythro-poietin polypeptide expressed by said cells. ’698 Patent, Ex. 1, col. 38: 37-47 (paragraph structure altered). Claim 6: A process for the production of a glyco-sylated erythropoietin polypeptide having the in vivo biological property of causing bone marrow cells to increase production of reticulocytes and red blood cells comprising the steps of: (a) growing under suitable nutrient conditions, vertebrate cells comprising amplified DNA encoding the mature erythropoiet-in amino acid sequence of FIG. 6; and (b) isolating said glycoslated erythro-poietin polypeptide expressed by said cells. Id. at col. 38: 50-58" }, { "docid": "8842250", "title": "", "text": "*1 (construing \"having a peptide sequence of human factor VIII: C but lacking a peptide region selected from the group consisting of” as \"[hjaving the amino acid sequence of the human Factor VIII protein lacking only the particular segment of the human Factor VIII protein in one of the specified alternatives (a), (b) or (c)”). . Claim 68 of the '620 patent reads: 68. A nucleic acid composition for introducing nucleic acid into a eukaryotic host cell to obtain expression of a recombinant protein lacking all or a portion of the B domain of human Factor VIII, wherein said recombinant protein consists of: a first amino acid sequence which consists of an amino acid sequence having at least 90% sequence identity with the contiguous amino acid sequence of amino acids 1 to 740 of the native, mature A domain of human Factor VIII and optionally up to 10 amino acids of the human Factor VIII B domain sequence contiguous to amino acid 740 as encoded by the polynucleotide present in plasmid pSVF8-200 (ATCC No. 40190); and a second amino acid sequence which consists of an amino acid sequence having at least 90% sequence identity with the contiguous amino acid sequence of amino acids 1649 to 2332 of the native, mature C domain of human Factor VIII and optionally up to 10 amino acids of the human Factor VIII B domain sequence contiguous to amino acid 1649 as encoded by the polynucleotide present in plasmid pSVF8-200 (ATCC No. 40190); wherein said nucleic acid encodes said first and second amino acid sequences, and further wherein said recombinant protein is capable of coagulation activity in a coagulation activity assay. . Claim 1 of the '447 patent reads: 1. A composition comprising Factor VIII: C proteins, wherein the Factor VIII: C proteins consist essentially of a first polypeptide comprising an amino acid sequence of the A domain of human Factor VIII: C as encoded by the polynucleotide present in plasmid pSVF8-200 (ATCC No. 40190) or an amino acid sequence that differs therefrom in having not more than 10 number % amino acid substitutions, and" }, { "docid": "8229342", "title": "", "text": "viruses. NK cells express a number of surface molecules which, when stimulated, can activate cytotoxic mechanisms. NAIL is a specific receptor protein on the cell surface that plays a role in activating the NK cells. The specification of the claimed invention recites an amino acid sequence of a NAIL polypeptide. The invention further isolates and sequences a polynucleotide that encodes a NAIL polypeptide. Moreover, the inventors trumpet their alleged discovery of a binding relationship between NAIL and a protein known as CD48. The NAIL-CD48 interaction has important biological consequences for NK cells, including an increase in cell cytotox-icity and in production of interferon. Representative claim 73 of appellants’ application claims the DNA that encodes the CD48-binding region of NAIL proteins: 73. An isolated nucleic acid molecule comprising a polynucleotide encoding a polypeptide at least 80% identical to amino acids 22-221 of SEQ ID NO:2, wherein the polypeptide binds CD48. In other words, appellants claim a genus of isolated polynucleotides encoding a protein that binds CD48 and is at least 80% identical to amino acids 22-221 of SEQ ID NO:2 — the disclosed amino acid sequence for the CD48-binding region of NAIL. Appellants’ specification discloses nucleotide sequences for two polynucleotides falling within the scope of the claimed genus, namely SEQ ID NO:l and SEQ ID NO:3. SEQ ID NO: 1 recites the specific coding sequence of NAIL, whereas SEQ ID NO: 3 recites the full NAIL gene, including upstream and downstream non-coding sequences. The specification also contemplates variants of NAIL that retain the same binding properties: Variants include polypeptides that are substantially homologous to the native form, but which have an amino acid sequence different from that of the native form because of one or more deletions, insertions or substitutions. Particular embodiments include, but are not limited to, polypeptides that comprise from one to ten deletions, insertions or substitutions of amino acid residues, when compared to a native sequence. A given amino acid may be replaced, for example, by a residue having similar physiochemical characteristics. Examples of such conservative substitutions include substitution of one aliphatic residue for another, such as lie," } ]

[ { "docid": "22548941", "title": "", "text": "With respect to the second aspect of the case, however, the court fundamentally disagreed with the District Court as to the reach and coverage of Rule 10b-5. The Court of Appeals' view was that, although the Rule plainly reached material misrepresentations and nondisclosures in connection with the purchase or sale of securities, neither misrepresentation nor nondisclosure was a necessary element of a Rule 10b-5 action; the Rule reached “breaches of fiduciary duty by a majority against minority shareholders without any charge of misrepresentation or lack of disclosure.\" Id., at 1287. The court went on to hold that the complaint, taken as a whole, stated a cause of action under the Rule: “We hold that a complaint alleges a claim under Rule 10b-5 when it charges, in connection with a Delaware short-form merger, that the majority has committed a breach of its fiduciary duty to deal fairly with minority shareholders by effecting the merger without any justifiable business purpose. The minority shareholders are given no prior notice of the merger, thus having no opportunity to apply for injunctive relief, and the proposed price to be paid is substantially lower than the appraised value reflected in the Information Statement.” Id., at 1291. See also id., at 1289. We granted the petition for certiorari challenging this holding because of the importance of the issue involved to the administration of the federal securities laws. 429 U. S. 814 (1976). We reverse. II Section 10 (b) of the 1934 Act makes it “unlawful for any person ... to use or employ . . . any manipulative or deceptive device or contrivance in contravention of [Securities and Exchange Commission rules]”; Rule 10b-5, promulgated by the SEC under § 10 (b), prohibits, in addition to nondisclosure and misrepresentation, any “artifice to defraud” or any act “which operates or would operate as a fraud or deceit.” The court below construed the term “fraud” in Rule 10b-5 by adverting to the use of the term in several of this Court’s decisions in contexts other than the 1934 Act and the related Securities Act of 1933, 15 U. S. C." } ]

[ { "docid": "23697395", "title": "", "text": "OPINION FEIKENS, District Judge. I. INTRODUCTION In August 1975 Sheldon Leib (Leib, also hereinafter designated as plaintiff) with his brother Joel Leib, as trustee, brought suit against Merrill Lynch, Pierce, Fenner & Smith, Inc. (Merrill Lynch) and John Kulhavi (Kulhavi), a stockbroker employed by Merrill Lynch, alleging as his first claim that these defendants “churned” his securities account. Plaintiff also submitted a second claim — that Kulhavi had breached his fiduciary duty by allowing Leib to pursue a course of heavy trading which could not possibly have resulted in a profit. Tied to this claim is plaintiff’s contention that Kulhavi, as the broker in charge of the account, should have thoroughly explained to Leib the consequences of his pattern of trading, particularly with respect to the amount of commissions which would be generated as compared to the amount of profits which could be realized. II. THEORIES OF THE PARTIES AND THE APPLICABLE LAW Churning occurs “when a broker, exercising control over the volume and frequency of trading, abuses his customer’s confidence for personal gain by initiating transactions that are excessive in view of the character of the account.” Carras v. Burns, 516 F.2d 251, 258 (4th Cir. 1975). It is a deceptive device actionable under Section 10(b) of the Securities Exchange Act and Rule 10b — 5 of the Securities and Exchange Commission. See generally, Note, Churning by Securities Dealers, 80 Harv.L.Rev. 869 (1967). In order to evaluate plaintiff’s second claim it is necessary to examine generally the duties owed by a stockbroker to his customer. Plaintiff argues that a broker has a fiduciary duty to his customer similar to that owed by an attorney to his client. Defendants contend that a stockbroker has a limited duty to serve his customer’s financial interest within the framework of a single transaction only. Neither position is entirely accurate. Defendants’ limited definition of a broker’s duty to his customer is correct so long as the customer has a non-discretionary account with his broker, i. e., an account in which the customer rather than the broker determines which purchases and sales to make. In" }, { "docid": "11558020", "title": "", "text": "law. Similarly, they argue that churning itself is insufficient to state a section 10(b) claim. Rather, churning allegations must be accompanied by averments of specific misrepresentations, omissions or acts of deception. Defendants also attack all complaints for the lack of detail with respect to the allegedly improper transactions. For the most part, these arguments were raised and rejected in the section discussing specificity. It appears undisputed that churning does state a cause of action under section 10(b). See e.g., Costello v. Oppenheimer & Co., Inc., 711 F.2d 1361, 1368 (7th Cir.1983); Thompson v. Smith Barney, Harris Upham & Co., Inc., 709 F.2d 1413, 1416-17 (11th Cir.1983); Follansbee v. Davis, Skaggs & Co., Inc., 681 F.2d 673, 676 (9th Cir.1982); Miley v. Oppenheimer, 637 F.2d 318, 324 (5th Cir.1981); Mihara v. Dean Witter & Co., Inc., 619 F.2d 814, 820 (9th Cir.1980); Carras v. Burns, 516 F.2d 251, 258 (4th Cir.1975); Landry v. Hemp-hill, Noyes & Co., 473 F.2d 365, 368 n. 1 (1st Cir.), cert. denied, 414 U.S. 1002, 94 S.Ct. 356, 38 L.Ed.2d 237 (1973); Hecht v. Harris Upham & Co., 430 F.2d 1202, 1206-1207 (9th Cir.1970); Mauriber v. Shear-son/American Express, Inc., 567 F.Supp. 1231, 1237-38 (S.D.N.Y.1983); Kaufman v. Magid, 539 F.Supp. 1088, 1095 (D.Mass. 1982); Kaufman v. Merrill Lynch, Pierce, Fenner & Smith, 464 F.Supp. 528, 534 (D.Md.1978); Dandorph v. Fahne Stock & Co., 462 F.Supp. 961, 963 (D.Conn.1979); Kravite v. Pressman, Frohlich & Frost, Inc., 447 F.Supp. 203, 211 (D.Mass.1978); Powers v. Frances I. DuPont & Co., 344 F.Supp. 429, 431-32 (E.D.Pa.1972); Lorenz y. Watson, 258 F.Supp. 724, 730 (E.D.Pa. 1966). As the court stated in Follansbee: It is settled that when a broker, unfaithful to the trust of his customer, churns an account in the brokers control for the purpose of enhancing the broker’s commission income and in disregard of the client’s interest, there is a violation of section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C.A. § 78a et seq., and Securities and Exchange Commission Rule 10b-5. 681 F.2d at 676. In order to prove a churning claim, plaintiff must show that the" }, { "docid": "689564", "title": "", "text": "thereunder could be performed in such a manner as to ‘involve’ a violation. In either case, the voidability provisions should apply even though the terms of the contract are within the bounds of the law. Id. (footnotes omitted). Although plaintiffs have alleged no facts which suggest that the underlying customer agreements with defendants are void, the court cannot say that they are unable to make such allegations. Accordingly, the first two claims of the complaint are dismissed but with leave for plaintiffs to amend in conformance with this decision. III. A. Whether Plaintiffs Claim Under Section 10(b) and Rule 10b-5 is Sufficiently Pleaded. Plaintiffs’ third cause of action alleges violations of section 10(b) of the 1934 Act, 15 U.S.C. § 78j(b), and SEC Rule 10b-5. Again citing Rule 9(b), Federal Rules of Civil Procedure, defendants argue that the complaint fails to specifically allege the time, place and nature of the allegedly fraudulent statements or omissions and who made them. Gottreich v. San Francisco Investment Corp., 552 F.2d 866 (9th Cir.1977). Defendants also argue that the complaint is deficient because it does not distinguish between defendants. Plaintiffs’ section 10(b) claim has two aspects. Plaintiffs apparently claim that defendants’ conduct violated the securities laws in that (1) it constituted churning and (2) it included various fraudulent misrepresentations and omissions. See Plaintiffs’ Opposition Memo, page 19-21. 1. Churning. “Churning” is “excessive trading by a broker exercising control over an account, disproportionate to the size, character and objectives of an account, for the purposes of generating commissions.” Faturik v. Woodmere Securities, Inc., 442 F.Supp. 943, 944 (S.D.N.Y.1977). A claim of churning states a cause of action for fraud within the meaning of section 10(b) and Rule 10b-5. Newburger, Loeb & Co., Inc. v. Gross, 563 F.2d 1057, 1069 (2d Cir.1977), cert. denied, 434 U.S. 1035, 98 S.Ct. 769, 54 L.Ed.2d 782 (1978). In order to establish their churning claim, plaintiffs must prove (1) that the broker engaged in excessive trading in light of the objectives and nature of the account and (2) that the broker dealer effectively exercised control over trading in the account" }, { "docid": "22301869", "title": "", "text": "many of the complex issues in the area of churning. In the present case, therefore, Judge Ma-hon was faced with several difficult questions concerning churning, amidst the pervasive silence of the Fifth Circuit and with but random tunes of intimation and adumbration from other courts. In contesting the jury verdict for the plaintiff Lila Miley, defendants Oppenheimer & Co. and two of its registered representatives, Anthony Geller and John Hamilton, (hereinafter “defendant” or “Oppenheimer”) contend that in his attempts to fill such judicial silence, Judge Mahon repeatedly struck errant cords. We have reviewed Judge Mahon’s work most carefully and have found it to be well-orchestrated and harmonious. Although Oppenheimer’s suggested orchestration of the law governing churning is not without appeal, we have chosen Judge Ma-hon’s work as the superior composition and affirm the decision of the district court. I. The Ingredients of a Churning Case: Skimmed Versus Evaporated Milk Churning occurs when a securities broker enters into transactions and manages a client’s account for the purpose of generating commissions and in disregard of his client’s interests. McNeal v. Paine, Webber, Jackson & Curtis, Inc., supra, 598 F.2d at 890 n.l (5th Cir. 1979); Mihara v. Dean Witter & Co., Inc., 619 F.2d 814, 820 (9th Cir. 1980). Once an investor proves that: (1) the trading in his account was excessive in light of his investment objectives; (2) the broker in question exercised control over the trading in the account; and (3) the broker acted with the intent to defraud or with willful and reckless disregard for the investor’s interests, Mihara v. Dean Witter & Co., Inc., supra, 619 F.2d at 821; Rolf v. Blyth, Eastman, Dillon & Company, Inc., 424 F.Supp. 1021, 1039-1040 (S.D.N.Y.,1977) aff'd in part and rev’d in part, 570 F.2d 38 (2nd Cir.), cert. denied, 439 U.S. 1039, 99 S.Ct. 642, 58 L.Ed.2d 698 (1978), the broker may be held liable for a violation of the federal securities laws under section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) and S.E.C. Rule 10b-5. McNeal v. Paine, Webber, Jackson & Curtis, Inc., supra, 598" }, { "docid": "7167668", "title": "", "text": "proving Mieczkowski committed fraudulent acts. The plaintiffs’ theory under federal securities law, however, is not clear. They may argue unauthorized trading is in and of itself a 10b-5 violation. In one case this theory permitted injured parties to recover, but there was also proof of extensive misrepresentations regarding the transactions that make the case a more traditional 10b-5 action. See Nye v. Blyth, Eastman, Dillon & Co., 588 F.2d 1189 (8th Cir.1978). Plaintiffs have not alleged Mieczkowski misled them in order to make the unauthorized transactions, although that may be implicit in their complaint. Moreover, a necessary element of their case will be proof of scienter because unauthorized trading alone is not a 10b-5 violation. Brophy v. Redivo, 725 F.2d 1218, 1220 (9th Cir.1984). In the complaint, plaintiffs allege at various points Mieczkowski “entered into a pattern of excessively buying and selling securities ... in disproportionate relation to the size and nature of the account” in order to generate commission. Dkt. 46. The claim essentially states a “churning” violation, and the parties have labelled the cause of action as such. Traditional churning cases, however, involve discretionary accounts while these plaintiffs’ accounts were non-discretionary. “Churning” takes place when a broker engages in excessive trading to gen erate commissions without regard for the client’s investment objectives. See Costello v. Oppenheimer & Co., Inc., 711 F.2d 1361, 1367 (7th Cir.1983); Thompson v. Smith Barney, Harris Upham & Co., 709 F.2d 1413, 1416 (11th Cir.1983); In Re Catanella and E.F. Hutton & Co., 583 F.Supp. 1388, 1405 (E.D.Pa.1984). Churning is undisputably recognized as a violation of § 10(b) and Rule 10b-5, id., see Hecht v. Harris, Upham & Co., 430 F.2d 1202, 1206-1207 (9th Cir.1970), and proof of a violation requires evidence that 1) the broker exercised control over the transactions in the account and 2) the amount of trading was excessive. Costello, 711 F.2d at 1368. See In Re Catanella, 583 F.Supp. at 1407 (requiring proof beyond these elements would be redundant and contravene statutory purpose). In addition, plaintiff must meet the general scienter requirement for proof of a § 10 and Rule" }, { "docid": "4946887", "title": "", "text": "the party asserting the existence of the partnership as part of its affirmative defense, the defendant bears the burden of showing its existence. Willett v. Rich, 142 Mass. 356, 7 N.E. 776 (1886); Reilly v. Selectmen of Blackstone, 266 Mass. 503, 165 N.E. 660 (1929). I conclude that the evidence does not support a finding that the parties intended to form either a partnership, or a joint venture. III. The gravamen of plaintiff’s complaint is that defendant Contrado employed a scheme to defraud plaintiff, in that he “churned” her account, in violation of Section 17(a) of the Securities Act of 1933, 15 U.S.C. § 77q, and Sections 10(b) and 15(c)(1) of the Securities and Exchange Act of 1934, 15 U.S.C. §§ 78j, 78o and Rules 10(b)(5), 15(c)(l)(2) and 15(c)(l)(7)(a); in violation of Mass. Gen. Laws ch. 110A, § 101; and in violation of the National Association of Securities Dealers’ Rules of Fair Practice, Ar- tide III, Section 2. The plaintiff alleges that defendant Pressman is responsible for Contrado’s action under Section 20 of the Securities and Exchange Act of 1934, 15 U.S.C. § 78t, and under the doctrine of respondeat superior. “Churning” occurs in a securities account when a dealer, acting in his own interests and against those of his customer, induces transactions in the customer’s account that are excessive in size and frequency in light of the character of the account. Note, Churning by Securities Dealers, 80 Harv.L.Rev. 869 (1967). A claim of churning has been held to state a cause of action under Section 10(b) and Rule 10b-5. Landry v. Hemphill, Noyes & Co., 473 F.2d 365 (1st Cir.), cert, denied, 414 U.S. 1002, 94 S.Ct. 356, 38 L.Ed.2d 237 (1973); Carras v. Burns, 516 F.2d 251 (4th Cir. 1975); Fey v. Walston & Co., Inc., 493 F.2d 1036 (7th Cir. 1974); Hecht v. Harris, Upham & Co., 430 F.2d 1202 (9th Cir. 1970). Proof of churning requires the demonstration of two elements: 1) that the broker-dealer exercised control over the account, and 2) that the broker engaged in excessive trading, considering the objectives and nature of the" }, { "docid": "8020908", "title": "", "text": "Alen testified that she had no objection to short-term trading if it turned out well. Plaintiff urges that the turnover rate in her account was three for the period in question. Defendants argue that the annualized rate is only 2.17. Upon this set of facts plaintiff seeks to hold defendants liable for alleged violations of the federal securities laws. Conclusions of Law The federal securities laws are not a panacea for all losses suffered in the stock market upon the recommendation of brokers. A recommendation that goes awry does not make out a claim under Rule 10b-5. See Mallinckrodt Chemical Works v. Goldman, Sachs & Co., 420 F.Supp. 231 [Current] (S.D.N.Y.1976) (Tenney, J.). While it is well established that a defrauded customer may sue her. broker for “churning” her account and that such activity constitutes a scheme or device to defraud under Rule 10b-5, see e. g., Carras v. Burns, 516 F.2d 251, 258 (4th Cir. 1975), in order to prevail upon such a claim, plaintiff must show that the defendants excessively traded her account in disregard of her investment objectives and in order to obtain commissions for themselves. See Greenfeld v. D. H. Blair & Co. [1975-76] CCH Fed.Sec.L. Rep. ¶ 95,239 (S.D.N.Y.1975). Further, plaintiff must show that the defendants acted with scienter, that is, that they traded her account with an intent to defraud, see Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193, 96 S.Ct. 1375, 47 L.Ed.2d 592 (1976), or at least with a wilful and reckless disregard of whether or not their actions operated as a fraud upon plaintiff. See Lanza v. Drezel & Co., 479 F.2d 1277, 1306 (2d Cir. 1973) (en banc). “Churning essentially involves improper purpose on the part of a broker to derive profits for himself with little regard for the interests of his customer.” (Stevens v. Abbott, Proctor & Paine, 288 F.Supp. 836, 845 (E.D.Va.1968)). While churning, if present, constitutes an insidious business practice well de serving of sanction under the securities laws, plaintiff cannot prevail solely upon a showing of excessive trading. See Gleit v. Shearson, Hammill & Co.," }, { "docid": "689565", "title": "", "text": "complaint is deficient because it does not distinguish between defendants. Plaintiffs’ section 10(b) claim has two aspects. Plaintiffs apparently claim that defendants’ conduct violated the securities laws in that (1) it constituted churning and (2) it included various fraudulent misrepresentations and omissions. See Plaintiffs’ Opposition Memo, page 19-21. 1. Churning. “Churning” is “excessive trading by a broker exercising control over an account, disproportionate to the size, character and objectives of an account, for the purposes of generating commissions.” Faturik v. Woodmere Securities, Inc., 442 F.Supp. 943, 944 (S.D.N.Y.1977). A claim of churning states a cause of action for fraud within the meaning of section 10(b) and Rule 10b-5. Newburger, Loeb & Co., Inc. v. Gross, 563 F.2d 1057, 1069 (2d Cir.1977), cert. denied, 434 U.S. 1035, 98 S.Ct. 769, 54 L.Ed.2d 782 (1978). In order to establish their churning claim, plaintiffs must prove (1) that the broker engaged in excessive trading in light of the objectives and nature of the account and (2) that the broker dealer effectively exercised control over trading in the account and manipulated the account to his benefit. Id. While there appears to be a split of authority, this court follows the view that to satisfy Rule 9(b) with regard to the first element, the complaint should set forth a statement of facts which would permit a determination of either the turnover ratio of the account, or the percentage of the account value paid in commissions. Baselski v. Paine, Webber, Jackson & Curtis, Inc., 514 F.Supp. 535, 541 (N.D.Ill.1981). The plaintiffs need not list with particularity every transaction relevant to their claim. Id. See also Lopez v. Dean Witter Reynolds, Inc., 591 F.Supp. 581, 584 (N.D.Cal.1984) (following Baselski). Compare Zonszein v. Bache Halsey Stuart Shields, Inc. [current] Fed.Sec.L. Rep. (CCH) § 92,233 (S.D.N.Y. June 24, 1985) [Available on WESTLAW, DCTU database] (plaintiff must identify the nature, amount, and dates of the particular sales and transactions upon which the claim of churning is based). The complaint easily passes this standard. Paragraphs 13 and 20 allege that defendants’ activities during the relevant time frames produced an annual turnover" }, { "docid": "4987434", "title": "", "text": "Co. Inc., 570 F.2d 38, 47 (2d Cir.1978), cert. deniedi, 439 U.S. 1039, 99 S.Ct. 642, 58 L.Ed.2d 698 (1978) (quoting Sanders v. John Nuveen & Co., 554 F.2d 790, 793 (7th Cir.1977)). We find that the purchase by Kuznetz of the two securities was, at the very least, reckless conduct. Surely a registered securities representative with fifteen (15) years experience as a stockbroker (the last eight with the defendant Thomson) (Tr. 233-34) should have known that he had a duty to clearly and plainly notify plaintiff about the Health-Chem purchase at the time he bought the stock for her. Further, he should have known that the purchase of Reserve Oil would have required more money in plaintiff’s margin account than then existed. The stock purchases were therefore “highly unreasonable.” Kuznetz well knew what he was doing; his actions were not within the realm of ordinary care by any stretch of the imagination. Accordingly, we find that Kuznetz’s purchase of the Health-Chem and of the Reserve Oil stocks were in violation of section 10(b) of the SEA and Rule 10b-5. Churning in Violation of Rule I Ob-5 Plaintiff also contends that Kuznetz churned her account which, if proven, would evince his use of a defrauding or deceptive device in violation of Rule 10b-5. See Newburger, Loeb & Co., Inc. v. Gross, 563 F.2d 1057, 1069 (2d Cir.1977), cert. denied, 434 U.S. 1035, 98 S.Ct. 769, 54 L.Ed.2d 782 (1978); Fey v. Walston, 493 F.2d 1036,1045 (7th Cir.1974); Van Alen v. Dominick & Dominick, Inc., 441 F.Supp. 389, 400 (S.D.N.Y.1976). A customer’s account is “churned” when his or her broker-dealer induces excessive transactions in the customer’s account for the broker-dealer’s personal gain. See 17 C.F.R. § 240.15cl-7(a); Newburger, Loeb, supra, at 1069; Zaretsky v. E.F. Hutton & Co., Inc., 509 F.Supp. 68, 74 (S.D.N.Y.1981). Such conduct is usually characterized by “in and out” trading through which the broker generates many commissions. See Altschul v. Paine, Webber, Jackson & Curtis, Inc., 518 F.Supp. 591, 595 (S.D.N.Y.1981). Plaintiff has failed to show that Kuznetz “churned” her account. During the entire eight months in" }, { "docid": "14217458", "title": "", "text": "and Unauthorized Transaction, 18 Sec.Reg.L.J. 374, 380 (1991). Unsuitability claims can be analyzed as omission cases or fraudulent practices cases. See City of San Jose v. Paine, Webber, Jackson & Curtis Inc., No. C 84-20601 RFP, 1991 WL 352485, *1, 1991 U.S.Dist. LEXIS 8318, at *1 (N.D.Ca. June 6, 1991); Trujillo, at *61. Some courts examining a § 10(b), Rule 10b-5 unsuitability claim have analyzed it simply as a misrepresentation or failure to disclose a material fact. See, e.g., Lefkowitz v. Smith Barney, Harris Upham & Co., Inc., 804 F.2d 154, 155 (1st Cir.1986). In such a case, the broker has omitted telling the investor the recommendation is unsuitable for the investor’s interests. The' court may then use traditional laws concerning omission to examine the claim. Under a misrepresentation or omission theory, a plaintiff can establish § 10(b), Rule 10b-5 liability by showing that in connection with the purchase or sale of a security — the broker made an untrue statement of a material fact, or failed to state a material fact, that in so doing, the broker acted knowingly with intent to deceive or defraud, and that plaintiff relied on the misrepresentations, and sustained damages as a proximate result of the misrepresentations. Farlow v. Peat, Marwick, Mitchell & Co., 956 F.2d 982, 986 (10th Cir.1992). In contrast, Ms. O’Connor asserts an unsuitability claim based on fraud by conduct. She does not assert Mr. Foulke omitted to tell her the stocks he purchased were unsuitable for her investment needs. Rather, she claims that his purchase of the stocks for her account acted as fraud upon her. Fraud by conduct is a violation of Rule 10b-5(a) and (c) and is analogous to a churning claim. Trujillo, at *61; Woodruff v. Merrill Lynch, Pierce, Fenner, & Smith, Inc., Fed.Sec.L.Rep. (CCH) ¶ 95,386, 1989 WL 224581 at *3 1989 U.S.Dist.Lexis 17196 at *9 (D.Neb. July 14, 1989). Churning is excessive trading on an account by a broker in light of the investor’s objectives. Hotmar v. Lowell H. Listrom & Co., 808 F.2d 1384, 1385-86 (10th Cir.1987). This circuit has also recognized a violation" }, { "docid": "20991682", "title": "", "text": "McWILLIAMS, Circuit Judge. O.J. Hotmar and his wife, Nellie, brought suit against their broker, Joe J. Brown, and his employer, Lowell H. Listrom & Company, alleging churning and a breach of fiduciary duty with respect to their stock portfolio during the period from November 1, 1977, through November 30, 1979. At trial, the plaintiffs called two witnesses, Joe J. Brown, one of the defendants, and O.J. Hotmar, one of the plaintiffs, and rested their case. The defendants then moved for a directed verdict under Fed.R.Civ.P. 50(a). The district court granted this motion, believing that the plaintiffs had failed to make a prima facie showing of either churning or breach of fiduciary duty, and entered judgment for the defendants. Plaintiffs appeal. We affirm. “Churning” is defined as “excessive trading by a broker disproportionate to the size of the account involved in order to generate commissions,” and is deemed a violation of § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), which prohibits any manipulative or deceptive device in the purchase or sale of any security in interstate commerce. See Dzenits v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 494 F.2d 168 (10th Cir.1974). Under section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) and S.E.C. Rule 10b-5, a broker may be held liable for violation of federal securities laws once an investor proves that: (1) the trading in his account was excessive in the light of his investment objectives; (2) the broker in question exercised control over the trading in the account; and (3) the broker acted with an intent to defraud or with willful and reckless disregard for the investor’s interests. Miley v. Oppenheimer & Co., Inc., 637 F.2d 318, 324 (5th Cir.1981); see also, e.g., Tiernan v. Blyth, Eastman, Dillon & Co., Inc., 719 F.2d 1 (1st Cir.1983); Mihara v. Dean Witter & Co., 619 F.2d 814, 821 (9th Cir.1980). As stated, the plaintiffs called only two witnesses, O.J. Hotmar, the investor, and Joe J. Brown, the stockbroker. In his comments from the bench,“^the district court analyzed their testimony carefully and" }, { "docid": "10921534", "title": "", "text": "SEC Rule 10b-5,17 C.F.R. § 240.10b-5. Counts V and VA allege that defendants engaged in “churning” in violation of Sections 10(b) and 15(c)(1) of the 1934 Act, 15 U.S.C. § 78o (c)(1). Counts VI and VIA allege common law fraud, and Count VIIA alleges breach of contract. Count IX alleges violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961, et seq. (“RICO”). Count X alleges violations of the Illinois Consumer Fraud and Deceptive Business Practices Act., Ill.Rev. Stat. ch. 121-V2, ¶ 261 et seq. Finally, Count XI alleges breach of fiduciary duty by PaineWebber. The court will consider each of these counts in a completely random sequence. Churning Claims The Order dismissed plaintiffs’ churning counts due to failure to meet the specificity requirements of Rule 9(b). See Fed.R.Civ.P. 9(b). Plaintiffs’ second amended complaint remedies this defect. It adds 12 new paragraphs setting forth in detail each plaintiff’s initial investment, the dollar amount of purchases made, the average account equity, and the ending balance of the accounts. This constitutes sufficient information to calculate at least the turnover ratio for each plaintiff’s account. Defendants now argue that plaintiffs have failed to plead that the broker exercised control over the transactions of the accounts, a necessary element in a churning action. See Costello v. Oppenheimer & Co., 711 F.2d 1361, 1368 (7th Cir.1983). Defendants further argue that plaintiffs’ allegations that they never granted Gallagher absolute discretion indicates that plaintiffs, not defendants, exercised control. For the purposes of this motion, the court disagrees. A generous reading finds that control by defendants is alleged; the court can infer from Uf 21-26 of the second amended complaint that defendants, as a practical matter, decided which transactions should be made, despite plaintiffs’ theoretical right to control their accounts. This inference is buttressed by plaintiffs’ allegation in 1112 that they are unsophisticated investors. See id., n. 8. Counts V and VA therefore state claims upon which relief can be granted. Section 10(b) and Rule 10b-5 Claims The Order dismissed plaintiffs’ Section 10(b) and Rule 10b-5 claims for failure to allege fraud “in connection with" }, { "docid": "15420701", "title": "", "text": "FAIRCHILD, Senior Circuit Judge. Plaintiff Tiernan brought this civil suit to recover losses sustained in his securities account with defendant Blyth Eastman Dillon & Co., Incorporated (“Blyth”). Tier-nan’s complaint charged that Blyth, thiough its broker, was guilty of misrepresentation, deception and fraud in the conduct of his account in violation of Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) (1976), and Securities and Exchange Commission Rule 10b-5, 17 C.F.R. § 240.10b-5 (1983). Tiernan specifically alleged that Blyth “churned” his account. See 17 C.F.R. § 240.15cl-7(a) (1983). At trial the jury was instructed that for Tiernan to recover on a claim of churning he must prove that Blyth (1) exercised control over the securities account, (2) traded excessively in the account in light of Tier-nan’s stated investment objectives and the nature of his account, and (3) acted with intent to defraud or -with wilful and reckless disregard for Tiernan’s interests. See Follansbee v. Davis, Skaggs & Co., Inc., 681 F.2d 673, 676 (9th Cir.1982); Landry v. Hemphill, Noyes & Co., 473 F.2d 365, 368 n. 1 (1st Cir.1973). The court submitted a special verdict. The first question inquired whether defendant exercised control. The jury answered “No” and in keeping with their decision judgment was entered in Blyth’s favor. On appeal Tiernan asserts the district court committed two errors that justify a new trial. First, he contends the district court erred in refusing to instruct the jury that if the plaintiff has demonstrated that he routinely followed the advice of Blyth’s broker, then the element of control is “met.” Second, Tiernan contends the district court erred in denying his motion to amend his complaint to include a claim of the unsuitability of the investments made by Blyth in his account in violation of Rule 10b-5 and pendent state claims of misrepresentation and nondisclosure in violation of the Massachusetts Uniform Securities Act, Mass.Gen.Laws Ann. ch. 110A, § 101 et seq. (West Supp.1983-1984), and in breach of Blyth’s fiduciary duty to Tiernan. We find no merit in either contention. I. Judge Mazzone gave a detailed jury instruction concerning the" }, { "docid": "22930022", "title": "", "text": "have Citibank act as his agent in purchasing or selling securities, nor does Caiola assert that Citibank could reasonably have inferred that it had such authority,” Id. at 368. This conclusion is incorrect, as the Complaint adequately alleges .that Citibank, acting as Caiola’s “broker-agent,” bought physical stock on Caiola’s behalf and for his account, albeit without his, authorization. (Compl.H 110.) The fact that Caiola did not authorize Citibank to engage in the physical transactions does not deprive Caiola of standing. Indeed, it is well-settled that claims under Rule 10b-5 arise when brokers purchase or sell securities on their clients’ behalf without specific authorization. For example, a claim for unauthorized trading, which occurs when a broker intentionally places trades without obtaining the .customer’s approval; historically has been well-established under Rule 10b-5. E.g., Sec. Investor Prot. Corp., 803 F.2d at 1519 (holding that .plaintiff adequately pleaded unauthorized trading where broker defendants allegedly made unauthorized transactions in • customers’ accounts as part of a stock market manipulation scheme); Cruse v. Equitable Sec. of N.Y., Inc., 678 F.Supp. 1023, 1028-30 (S.D.N.Y.1987) (holding that plaintiff sufficiently pleaded, for Rule 12(b)(6) purposes, unauthorized trading arising from broker’s purchases and sales for plaintiffs account, but dismissing claims under Federal Rule of Civil Procedure 9(b) for insufficient particularity); Jaksich v. Thomson McKinnon Sec., Inc., 582 F.Supp. 485, 492-95 (S.D.N.Y.1984) (finding section 10(b) and Rule 10b-5 violations where defendant broker purchased and sold stock without plaintiff customer’s authorization). By-definition, a broker who is liable for making unauthorized trades makes them without the customer’s authorization. Churning claims, which depend on a broker’s liability for excessive trading, also have been recognized under Rule 10b-5. See Saxe v. E.F. Hutton & Co., Inc., 789 F.2d 105, 112 (2d Cir.1986) (“Churning occurs when an account has been excessively traded to generate commissions in contravention to the investor’s expressed investment goals.”); see also Armstrong v. McAlpin, 699 F.2d 79, 90-92 (2d Cir.1983); Nilsen v. Prudential-Bache Sec., 761 F.Supp. 279, 289-90 (S.D.N.Y.1991). As with unauthorized trading or churning claims, the key fact is that Caiola has alleged that the purchases were made on his behalf," }, { "docid": "22460803", "title": "", "text": "in spite of the charge made by the defendants concerning the conspiracy between the employees and the plaintiffs, and that the admissions of the defendants with respect to multiple transactions and violation of the margin requirements automatically entitle the plaintiffs to a partial summary judgment upon the issue of liability. As a matter of law, this conclusion does not follow and summary judgment must be denied for the reasons hereafter discussed. Churning This claim for relief is founded upon Section 10(b) of the Act and Rule 10b-5 issued thereunder, which, in substance, makes unlawful the employment of any manipulative or deceptive device or contrivance by any person in connection with the purchase and sale of any security upon a national securities exchange or otherwise. Rule 10b-5 makes it un lawful for any person so engaged “(a) To employ any device, scheme, or artifice to defraud,” and “(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person.” In defining these terms with respect to Section 15(c) of the Act (15 U.S.C.A. § 78o(e)) pertaining to broker-dealer transactions on Over-the-Counter markets, the Commission’s rule states that such devices include “any act of any broker or dealer designed to effect with or for any customer’s account in respect to which such broker or dealer or his agent or employee is vested with any discretionary power any transactions of purchase or sale which are excessive in size or frequency in view of the financial resources and character of such account.” 17 C.F.R. § 240.15cl-7(a). Over-trading, per se, in an account whose transactions are initiated by a customer does not constitute churning in the absence of any fiduciary relationship. See, Thomson & McKinnon, 35 SEC 451, 454 (1953). But over-trading will constitute churning whenever a broker or dealer, who is in a position to determine the volume and frequency of transactions by reason of the confidence imposed in him, abuses the confidence of the customer for personal gain by frequent and numerous transactions disproportionate to the investment in the account. Looper" }, { "docid": "4987435", "title": "", "text": "the SEA and Rule 10b-5. Churning in Violation of Rule I Ob-5 Plaintiff also contends that Kuznetz churned her account which, if proven, would evince his use of a defrauding or deceptive device in violation of Rule 10b-5. See Newburger, Loeb & Co., Inc. v. Gross, 563 F.2d 1057, 1069 (2d Cir.1977), cert. denied, 434 U.S. 1035, 98 S.Ct. 769, 54 L.Ed.2d 782 (1978); Fey v. Walston, 493 F.2d 1036,1045 (7th Cir.1974); Van Alen v. Dominick & Dominick, Inc., 441 F.Supp. 389, 400 (S.D.N.Y.1976). A customer’s account is “churned” when his or her broker-dealer induces excessive transactions in the customer’s account for the broker-dealer’s personal gain. See 17 C.F.R. § 240.15cl-7(a); Newburger, Loeb, supra, at 1069; Zaretsky v. E.F. Hutton & Co., Inc., 509 F.Supp. 68, 74 (S.D.N.Y.1981). Such conduct is usually characterized by “in and out” trading through which the broker generates many commissions. See Altschul v. Paine, Webber, Jackson & Curtis, Inc., 518 F.Supp. 591, 595 (S.D.N.Y.1981). Plaintiff has failed to show that Kuznetz “churned” her account. During the entire eight months in which plaintiff maintained an account at Haas, Kuznetz only bought two different stocks for her. His actions, although far from being clean and straightforward, we are quite convinced, were not motivated by high commissions as the sole incentive. Cf. Kravitz v. Pressman, Frohlich & Frost, Inc., 447 F.Supp. 203, 206-08 (D.Mass.1978) (broker traded 21.5 times per month and securities were sold a few days after purchase without significant price changes; cause of action for churning established). We conclude, therefore, that plaintiff’s allegation of churning on the part of defendants in violation of Rule 10b-5 has not been established; the proof fails to sustain that particular cause of action. Defenses to Section 10(b) and Rule 10b-5 Defendants contend that even if their actions did constitute violations of section 10(b) and Rule 10b-5, the plaintiff is es-topped from maintaining this action since she ratified and approved Kuznetz’s acts and thereby alleviated the defendants from accountability. We first consider Kuznetz’s purchase of Health-Chem. We find that although it was bought without authorization, plaintiff did not object to its" }, { "docid": "22301870", "title": "", "text": "interests. McNeal v. Paine, Webber, Jackson & Curtis, Inc., supra, 598 F.2d at 890 n.l (5th Cir. 1979); Mihara v. Dean Witter & Co., Inc., 619 F.2d 814, 820 (9th Cir. 1980). Once an investor proves that: (1) the trading in his account was excessive in light of his investment objectives; (2) the broker in question exercised control over the trading in the account; and (3) the broker acted with the intent to defraud or with willful and reckless disregard for the investor’s interests, Mihara v. Dean Witter & Co., Inc., supra, 619 F.2d at 821; Rolf v. Blyth, Eastman, Dillon & Company, Inc., 424 F.Supp. 1021, 1039-1040 (S.D.N.Y.,1977) aff'd in part and rev’d in part, 570 F.2d 38 (2nd Cir.), cert. denied, 439 U.S. 1039, 99 S.Ct. 642, 58 L.Ed.2d 698 (1978), the broker may be held liable for a violation of the federal securities laws under section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) and S.E.C. Rule 10b-5. McNeal v. Paine, Webber, Jackson & Curtis, Inc., supra, 598 F.2d at 890 n.l. See Mihara v. Dean Witter & Co., Inc., supra, 619 F.2d at 820; Hecht v. Harris, Upham & Co., 430 F.2d 1202, 1206-07 (9th Cir. 1970); Newburger, Loeb & Co. v. Gross, 563 F.2d 1057, 1069 (2nd Cir. 1977), cert. denied, 434 U.S. 1035, 98 S.Ct. 769, 54 L.Ed.2d 782 (1978); Carras v. Burns, 516 F.2d 251, 288 (4th Cir. 1975); Landry v. Hemphill, Noyes & Co., 473 F.2d 365, 368 n.l (1st Cir.), cert. denied, 414 U.S. 1002, 94 S.Ct. 356, 38 L.Ed.2d 237 (1973). Additionally, upon proving the three requisite elements of a federal securities law churning violation, the investor will, in most or perhaps all cases, be entitled to hold the broker liable under a pendent state claim for breach of fiduciary duty. The stories presented at trial by the two parties in this case were similar to the contentions of the opposing parties in most churning cases. Miley, like most churning plaintiffs, argued that she was an unsophisticated investor and that Oppenheimer and its brokerage representatives were" }, { "docid": "11558023", "title": "", "text": "of which is deception of a relying customer, churning, as a matter of law, is considered a violation of section 10(b) and Rule 10b-5.” Costello, 711 F.2d at 1368 (citations omitted) (emphasis added). Similarly, the Ninth Circuit stated “[t]he churning of a client’s account is, in itself, a scheme or artifice to defraud within the meaning of Rule 10b-5.” Mihara, 619 F.2d at 821. Accord Yancoski, at 91. In Armstrong v. McAlpin, 699 F.2d 79 (2d Cir.1983), the district court had dismissed the churning claim for failing to allege an accompanying misrepresentation or omission. In reversing that decision, the court stated that “churning, in and of itself, may be a deceptive and manipulative device under section 10(b), the scienter required by section 10(b) being implicit in the nature of the conduct. The district court’s reliance upon Santa Fe Industries v. Green, supra, 430 U.S. 462, 97 S.Ct. 1292, 51 L.Ed.2d 480, was misplaced.” Armstrong, 699 F.2d at 91 (citations omitted). I agree that the utilization of a customer’s account to generate omissions, without regard to the customer’s investment objectives, is “deceptive” within the meaning of section 10(b). To require a plaintiff to prove something in addition to the elements of control and excessiveness would be redundant and would contravene the overriding purpose behind the Securities and Exchange Act of 1934 — the protection of the investing public. Defendants’ other arguments with respect to churning are made in the guise of pleading deficiencies under Rule 9(b) of the Federal Rules of Civil Procedure. I have already rejected the suggestion that a plaintiff must list all allegedly tainted transactions and calculate the turnover ratio. Although not as detailed as defendants might wish, the complaints do contain allegations of broad discretionary control and excessive trading in light of conservative investment objectives. See e.g., Shulik Complaint, ¶¶ 19, 39, 44, 45; Singer Complaint, ¶¶ 21, 24; Rastelli Complaint, ¶¶ 21, 24. Moreover, paragraph 16 of the Gaugler Complaint sets forth in unassailable detail the names of the securities churned, the frequency of trading, the commissions paid and the estimated turnover ratio. Therefore, I conclude" }, { "docid": "11558022", "title": "", "text": "broker exercised control over the account and that the trading was excessive. See e.g., Costello, 711 F.2d at 1368; Thompson, 709 F.2d at 1416-17; Miley, 637 F.2d at 324; Mihara, 619 F.2d at 821; Kaufman, 539 F.Supp. at 1095; Zaretsky v. E.F. Hutton & Co., Inc., 509 F.Supp. 68, 74 (S.D.N.Y. 1981). Although courts seem to be in agreement with respect to these two elements, some have added the requirement that the broker act “with the intent to defraud or with willful and reckless disregard for the investor’s interest.” Thompson, 709 F.2d at 1417; Miley, 637 F.2d at 324; Mihara, 619 F.2d at 821. However, this prong only appears to formalize the general scienter requirement necessary for all section 10(b) actions. Although the prohibition on churning can probably be traced to the fiduciary responsibility a broker owes to its customers, as the above cited eases demonstrate, churning does rise to the level of a section 10(b) violation. The act of churning itself is a deception. As the Costello court noted; “as a scheme, the essence of which is deception of a relying customer, churning, as a matter of law, is considered a violation of section 10(b) and Rule 10b-5.” Costello, 711 F.2d at 1368 (citations omitted) (emphasis added). Similarly, the Ninth Circuit stated “[t]he churning of a client’s account is, in itself, a scheme or artifice to defraud within the meaning of Rule 10b-5.” Mihara, 619 F.2d at 821. Accord Yancoski, at 91. In Armstrong v. McAlpin, 699 F.2d 79 (2d Cir.1983), the district court had dismissed the churning claim for failing to allege an accompanying misrepresentation or omission. In reversing that decision, the court stated that “churning, in and of itself, may be a deceptive and manipulative device under section 10(b), the scienter required by section 10(b) being implicit in the nature of the conduct. The district court’s reliance upon Santa Fe Industries v. Green, supra, 430 U.S. 462, 97 S.Ct. 1292, 51 L.Ed.2d 480, was misplaced.” Armstrong, 699 F.2d at 91 (citations omitted). I agree that the utilization of a customer’s account to generate omissions, without regard to" }, { "docid": "11558021", "title": "", "text": "(1973); Hecht v. Harris Upham & Co., 430 F.2d 1202, 1206-1207 (9th Cir.1970); Mauriber v. Shear-son/American Express, Inc., 567 F.Supp. 1231, 1237-38 (S.D.N.Y.1983); Kaufman v. Magid, 539 F.Supp. 1088, 1095 (D.Mass. 1982); Kaufman v. Merrill Lynch, Pierce, Fenner & Smith, 464 F.Supp. 528, 534 (D.Md.1978); Dandorph v. Fahne Stock & Co., 462 F.Supp. 961, 963 (D.Conn.1979); Kravite v. Pressman, Frohlich & Frost, Inc., 447 F.Supp. 203, 211 (D.Mass.1978); Powers v. Frances I. DuPont & Co., 344 F.Supp. 429, 431-32 (E.D.Pa.1972); Lorenz y. Watson, 258 F.Supp. 724, 730 (E.D.Pa. 1966). As the court stated in Follansbee: It is settled that when a broker, unfaithful to the trust of his customer, churns an account in the brokers control for the purpose of enhancing the broker’s commission income and in disregard of the client’s interest, there is a violation of section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C.A. § 78a et seq., and Securities and Exchange Commission Rule 10b-5. 681 F.2d at 676. In order to prove a churning claim, plaintiff must show that the broker exercised control over the account and that the trading was excessive. See e.g., Costello, 711 F.2d at 1368; Thompson, 709 F.2d at 1416-17; Miley, 637 F.2d at 324; Mihara, 619 F.2d at 821; Kaufman, 539 F.Supp. at 1095; Zaretsky v. E.F. Hutton & Co., Inc., 509 F.Supp. 68, 74 (S.D.N.Y. 1981). Although courts seem to be in agreement with respect to these two elements, some have added the requirement that the broker act “with the intent to defraud or with willful and reckless disregard for the investor’s interest.” Thompson, 709 F.2d at 1417; Miley, 637 F.2d at 324; Mihara, 619 F.2d at 821. However, this prong only appears to formalize the general scienter requirement necessary for all section 10(b) actions. Although the prohibition on churning can probably be traced to the fiduciary responsibility a broker owes to its customers, as the above cited eases demonstrate, churning does rise to the level of a section 10(b) violation. The act of churning itself is a deception. As the Costello court noted; “as a scheme, the essence" } ]

[ { "docid": "22673193", "title": "", "text": "be tried here. IV The Court of Appeals erred in holding that the possibility of an unfavorable change in law bars dismissal on the ground of forum non conveniens. It also erred in rejecting the District Court’s Gilbert analysis. The District Court properly decided that the presumption in favor of the respondent’s forum choice applied with less than maximum force because the real parties in interest are foreign. It did not act unreasonably in deciding that the private interests pointed towards trial in Scotland. Nor did it act unreasonably in deciding that the public interests favored trial in Scotland. Thus, the judgment of the Court of Appeals is Reversed. Justice Powell took no part in the decision of these cases. Justice O’Connor took no part in the consideration or decision of these cases. Avco-Lycoming, Inc., the manufacturer of the plane’s engines, was also named as a defendant. It was subsequently dismissed from the suit by stipulation. The pilot’s estate has also filed suit in the United Kingdom against Air Navigation, McDonald, Piper, and Hartzell. See Affidavit of Donald Ian Kerr MacLeod, App. A19 (affidavit submitted to District Court by petitioners describing Scottish law). Suits for damages are governed by The Damages (Scotland) Act 1976. Section 1404(a) provides: “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.” The District Court concluded that it could not assert personal jurisdiction over Hartzell consistent with due process. However, it decided not to dismiss Hartzell because the corporation would be amenable to process in Pennsylvania. The factors pertaining to the private interests of the litigants included the “relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.” Gilbert, 330 U. S., at 508. The public factors bearing on the" } ]

[ { "docid": "9836025", "title": "", "text": "appropriate factors but clearly errs in weighing them, with the result that its assessment falls outside the universe of plausible outcomes. See Nowak v. Tak How Invs., Ltd., 94 F.3d 708, 719 (1st Cir.1996); Mercier v. Sheraton Int’l, Inc., 935 F.2d 419, 423 (1st Cir.1991) (Mercier I). In administering this test, a reviewing court must assiduously avoid twin temptations: it must neither substitute its judgment for that of the district court nor strike the balance of relevant factors anew. See Piper, 454 U.S. at 257, 102 S.Ct. 252. III. DISCUSSION When a defendant moves for dismissal on forum non conveniens grounds, it bears the burden of showing both that an adequate alternative forum exists and that considerations of convenience and judicial efficiency strongly favor litigating the claim in the alternative forum. See Mercier I, 935 F.2d at 423-24. Courts generally deem the first requirement satisfied if the defendant demonstrates that the alternative forum addresses the types of claims that the plaintiff has brought and that the defendant is amenable to service of process there. See Piper, 454 U.S. at 254 n. 22, 102 S.Ct. 252. The second requirement evokes a more sophisticated balancing: the defendant must show that the compendium of factors relevant to the private and public interests implicated by the case strongly favors dismissal. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); Mercier I, 935 F.2d at 423-24. The Supreme Court has provided substantial guidance on the nature of the factors to be assayed in the second step of the analysis. Considerations relevant to the litigants’ private interests include “the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; [and the] possibility of view of premises, if view would be appropriate to the action.” Gilbert, 330 U.S. at 508, 67 S.Ct. 839. Evaluating private interests also requires the trial judge to pay heed to “all other practical problems that make trial of a case easy, expeditious and inexpensive.” Id. We have no doubt" }, { "docid": "5568585", "title": "", "text": "action tried, and urge the court to dismiss in favor of one of these countries in the event it determines that PNG is inadequate for forum non conveniens purposes. Plaintiffs assert that the court should deny this aspect of defendants’ motion because they have failed to demonstrate that any of PNG, Australia or Britain is an adequate alternative forum. 1. Legal Standard Governing Forum Non Conveniens Dismissals “[T]he standard to be applied [to a motion for dismissal on the ground of forum non conveniens ] is whether ... defendants have made a clear showing of facts which ... establish such oppression and vexation of a defendant as to be out of proportion to plaintiffs convenience, which may be shown to be slight or nonexistent. ...” Cheng v. Boeing Co., 708 F.2d 1406, 1410 (9th Cir.1983). Applying this standard, the court should treat “forum non conveniens as an exceptional tool to be employed sparingly,” and should not “perceive it as a doctrine that compels plaintiffs to choose the optimal forum for their claim.” Ravelo Monegro v. Rosa, 211 F.3d 509, 514 (9th Cir.2000). To obtain dismissal on forum non conveniens grounds, defendants must demonstrate that an adequate alternative forum exists, and that private and public interests favor trial in the alternative forum. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981); Lueck v. Sundstrand Corp., 236 F.3d 1137, 1143 (9th Cir.2001); Jones v. GNC Franchising, Inc., 211 F.3d 495, 499, n. 22 (9th Cir.2000); Cheng v. Boeing Co., 708 F.2d 1406, 1411 (9th Cir.1983). Relevant “private interests” include: (1) the relative ease of access to sources of proof; (2) the availability of compulsory process for unwilling witnesses; (3) the comparative cost of obtaining willing witnesses; (4) the possibility of a view of any affected premises; (5) the ability to enforce any judgment eventually obtained; (6) and “all other practical problems that make trial of a case easy, expeditious and inexpensive.” Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), superseded by statute on other grounds as" }, { "docid": "3815844", "title": "", "text": "these factors is reasonable, its decision deserves substantial deference. Piper Aircraft Co., 454 U.S. at 257, 102 S.Ct. at 266. Furthermore, the district court is granted “substantial flexibility” in deciding a forum non conveniens argument. Van Cauwenberghe v. Biard, 486 U.S. 517, 529, 108 S.Ct. 1945, 1953, 100 L.Ed.2d 517 (1988). “There is ordinarily a strong presumption in favor of the plaintiff’s choice of forum, which may be overcome only when the private and public interest factors clearly point towards trial in the alternative forum.” Macedo v. Boeing Co., 693 F.2d 683, 688 (7th Cir.1982); see Piper Aircraft Co., 454 U.S. at 255, 102 S.Ct. at 265; Koster v. (American) Lumbermens Mutual Casualty, 330 U.S. 518, 524, 67 S.Ct. 828, 831, 91 L.Ed. 1067 (1947); Gulf Oil v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947). “Courts routinely give less weight to a foreign plaintiff’s choice of forum. Citizens or residents deserve somewhat more deference than foreign plaintiffs.” Macedo, 693 F.2d at 688; see Piper Aircraft, 454 U.S. at 256, 102 S.Ct. at 266. Nevertheless, the district court must be able to police misuse, such as actions brought in a particular forum to harass a party. There is no rigid test upon which a district court must focus when analyzing a forum non conveniens argument; instead, as articulated by the Supreme Court in Gulf Oil Corp. v. Gilbert, there are several public and private interest factors that may be considered. Private interests include the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforceability of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. 330 U.S. at 508, 67 S.Ct. at 843. Public interests include judicial administration, trying cases in a forum that has a" }, { "docid": "16550029", "title": "", "text": "the breach. “When an agent makes a contract for a disclosed principal, it becomes neither a party to the contract nor liable for the performance of the contract.” Seguros Banvenez S.A. v. S/S Oliver Drescher, 761 F.2d 855, 860 (2d Cir.1985). Thus, Rule 19(a)(1) is also inapplicable. Clearly, under plaintiffs theory of liability, Suehard does not come within the ambit of Rule 19(a). Therefore, I have no occasion to consider whether joinder of Suehard is unfeasible, and if so, whether in equity and good conscience the case may proceed in its absence. C. Forum non Conveniens Defendant also moves to dismiss on the ground of forum non conveniens. Dismissal of a case on forum non conveniens grounds is discretionary and should only be granted “when trial in the chosen forum would ‘establish ... oppressiveness and vexation to a defendant ... out of all proportion to plaintiffs convenience’ or when ‘the chosen forum [is] inappropriate because of considerations affecting the court’s own administrative and legal problems.’ ” Piper Aircraft v. Reyno, 454 U.S. 235, 241, 102 S.Ct. 252, 258, 70 L.Ed.2d 419 (1981) (quoting Roster v. Lumbermens Mut. Cos. Co., 330 U.S. 518, 524, 67 S.Ct. 828, 832, 91 L.Ed. 1067 (1947)). The Supreme Court has provided a list of private and public interest factors for district courts to consider in determining the validity of a forum non conveniens claim. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947). The factors pertaining to the litigants’ private interests include: Relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; ... and all other practical problems that make trial of a case easy, expeditious and inexpensive. Gilbert, 330 U.S. at 508, 67 S.Ct. at 843. The public interest factors are: The local interest in having localized controversies decided at home; the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action; the avoidance of unnecessary" }, { "docid": "5568586", "title": "", "text": "Rosa, 211 F.3d 509, 514 (9th Cir.2000). To obtain dismissal on forum non conveniens grounds, defendants must demonstrate that an adequate alternative forum exists, and that private and public interests favor trial in the alternative forum. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981); Lueck v. Sundstrand Corp., 236 F.3d 1137, 1143 (9th Cir.2001); Jones v. GNC Franchising, Inc., 211 F.3d 495, 499, n. 22 (9th Cir.2000); Cheng v. Boeing Co., 708 F.2d 1406, 1411 (9th Cir.1983). Relevant “private interests” include: (1) the relative ease of access to sources of proof; (2) the availability of compulsory process for unwilling witnesses; (3) the comparative cost of obtaining willing witnesses; (4) the possibility of a view of any affected premises; (5) the ability to enforce any judgment eventually obtained; (6) and “all other practical problems that make trial of a case easy, expeditious and inexpensive.” Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), superseded by statute on other grounds as recognized in Hartford Fire Ins. Co. v. Westinghouse Elec. Corp., 725 F.Supp. 317 (S.D.Miss.1989). See also Rosa, supra, 211 F.3d at 512; Nebenzahl v. Credit Suisse, 705 F.2d 1139, 1140 (9th Cir.1983). “Public interest factors,” by contrast, include: (1) court congestion; (2) the unfairness of burdening citizens in an unrelated forum with jury duty; (3) the interest in having localized controversies decided at home; (4) the interest in trying the case in a forum familiar with the applicable law; and (5) the interest in avoiding unnecessary conflicts of laws. Gulf Oil, supra, 330 U.S. at 508-09, 67 S.Ct. 839; Rosa, supra, 211 F.3d at 512. The defendant bears the burden of showing that, in light of these factors, “exceptional circumstances” warrant dis missal on forum non conveniens grounds. See Ioannidis/Riga v. M/V Sea Concert, 132 F.Supp.2d 847, 861 (D.Or.2001); Magellan Real Estate Investment Trust v. Losch, 109 F.Supp.2d 1144, 1148 (D.Ariz.2000). Ultimately, the determination is committed to the sound discretion of the district court. Lueck, supra, 236 F.3d at 1143. 2. Papua New Guinea a." }, { "docid": "11530897", "title": "", "text": "Gilbert, 330 U.S. 501, 506-07, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); see also R. Maganlal & Co. v. M.G. Chem. Co., 942 F.2d 164, 167 (2d Cir.1991) (citing Piper Aircraft, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419). Here the defendants argue that the United States District Court for the District of Montana would be an appropriate forum. As the remaining defendant, Dr. Gue, is a Montana resident — there is no question that he is amenable to process in Montana. Thus, the first inquiry into whether Montana is an adequate and available forum is satisfied. However, there is a second inquiry that must be made before a transfer on forum non conveniens grounds should be granted. If there is such an adequate alternative forum, the court must balance a number of factors in order to determine whether they outweigh the deference ordinarily attended to the plaintiffs choice of forum. See Mizokami Bros. of Arizona, 660 F.2d at 717-18. In the seminal decision of Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 509, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), the Supreme Court enumerated a nonexhaustive list of factors which must be considered in the forum non conveniens equation. The Court categorized these considerations into “private interest,” and “public interest” factors. The private interest factors consist of the following: 1)relative ease of access to sources of proof; 2)availability of compulsory process for attendance of unwilling, and cost of obtaining attendance of willing, witnesses; 3)possibility of view of the premises, if view would be appropriate to the action; and 4)all other practical problems that make trial of a case easy, expeditious and inexpensive. Piper Aircraft, 454 U.S. at 241 n. 6, 102 S.Ct. 252 (quoting Gilbert, 330 U.S. at 508, 67 S.Ct. 839). The public interest factors consist of the following: 1)administrative difficulties flowing from court congestion; 2)the forum’s interest in having localized controversies decided at home; 3)the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action; 4)the avoidance of unnecessary problems in conflicts" }, { "docid": "7336361", "title": "", "text": "forum non conveniens, a court must first satisfy itself that there is an “adequate alternative forum ... available to hear the case.” Reid-Walen v. Hansen, 933 F.2d 1390, 1393 n. 2 (8th Cir.1991). An adequate alternative forum is a forum where the parties are “amenable to process and come within the jurisdiction of the forum,” and where the parties will not be deprived of possible remedies or treated unfairly. Id. If the court finds an adequate alternative forum, it must then evaluate private and public interest factors as they weigh against or in favor of the alternative forum. K-V Pharm., 648 F.3d at 597. Private interest factors include: (1) the “ease of access to sources of proof’; (2) the availability of compulsory process for unwilling witnesses; (3) the cost of attendance for willing witnesses; (4) the ability to view the premises, if necessary to the action; (5) the enforceability of eventual judgment; and (6) any other practical problems that may interfere with an “easy, expeditious and inexpensive” trial. Id. (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 91 L.Ed. 1055 (1947)). Public interest factors include: (1) “[ajdministrative difficulties” arising when matters are litigated in “congested centers instead of being handled at [their] origin”; (2) the imposition of jury duty on people in communities with no relation to the litigation; (3) where many people are affected by the matter, the inconvenience of holding the trial in a distant area where those affected “can learn of it by report only”; (4) the local interest “in having localized controversies decided at home”; and (5) the appropriateness of “having ... a diversity case in a forum that is at home with the state law that must govern the case.” Id. (citing Gilbert, 330 U.S. at 508-09, 67 S.Ct. 839). Because forum non conveniens is “to be applied only in exceptional circumstances,” unless the defendant can show that the interests weigh strongly in its favor, “the plaintiffs choice of forum should rarely be disturbed.” Id. at 597-98, 67 S.Ct. 839. The defendant has the burden of proving all of the" }, { "docid": "17000396", "title": "", "text": "to Stay Pending Resolution of Civil Suit in Germany 1. Forum Non Conveniens District courts should give deference to a plaintiffs choice of venue. When a defendant moves to change the forum, he must overcome the presumption that the plaintiff has chosen the proper forum. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 843-44, 91 L.Ed. 1055 (1947). In order to require transfer or dismissal on forum non conveniens grounds, a defendant must show that the balance of hardships presented by litigating in the forum weighs strongly in favor of dismissal or transfer. Further, he must show that the alternative forum is adequate and public interest favors the alternative forum. Ceramic Corp. v. Inka Maritime Corp., 1 F.3d 947, 949 (9th Cir.1993). To aid in choosing between adequate alternative forums, the court may consider a number of criteria: An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. Important considerations are1 the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling and the cost of obtaining attendance of willing, witnesses; ... and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforceability of a judgment if one is obtained. Factors of public interest also have place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not be to imposed upon the people of a community which has no relation to the litigation. Gulf Oil, 330 U.S. at 508-09, 67 S.Ct. at 843-44. The Sixth Circuit has further explained, “a United States citizen should not be deprived of his choice of forum except when the trial would prove oppressive and vexatious to defendant, out of all proportion to the convenience to plaintiff, or when it would be inappropriate because of administrative or legal problems of the court.” Gould, Inc. v. Pechiney Ugine Kuhlmann, 853 F.2d" }, { "docid": "14360786", "title": "", "text": "plaintiffs’ choice of forum is entitled to substantial deference; (3) an English choice of law provision and the presence of English parties does not require dismissal; (4) England is not an adequate alternative forum; and (5) the private interests of the parties militate in favor of this Court retaining jurisdiction. “ ‘The principle of forum non conveniens permits a court to decline jurisdiction even though venue and jurisdiction are proper, on the theory that for the convenience of the litigants and witnesses, the action should be tried in another forum.’ ” Mizokami Bros. of Arizona v. Mobay Chemical Corp., 660 F.2d 712, 717 (8th Cir.1981) quoting Dahl v. United Technologies Corp., 632 F.2d 1027, 1029 (3d Cir.1980). The principles that govern a motion to dismiss on forum non conveniens grounds are well settled. The Court must first determine whether there is an adequate alternative forum available in which the dispute can be resolved. If there is such a forum, the Court must balance a number of private and public interest factors in order to determine whether they outweigh the deference ordinarily attended to the plaintiff’s choice of forum. See Mizokami Bros. of Arizona, 660 F.2d at 717—18 citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 842-43, 91 L.Ed. 1055 (1947). Important considerations as to the private interest of the litigant are such factors as the relative ease of access to sources of proof; availability of compulsory process for attendance of the unwilling and the cost of obtaining attendance of willing witnesses; the enforceability of a judgment if one is obtained; and all other practical problems that make trial of a case easy, expeditious and inexpensive. Mizokami Bros. of Arizona, 660 F.2d at 717 quoting Gilbert, 330 U.S. at 508-09, 67 S.Ct. at 842-43. Factors of public interest include a local interest in having localized controversies decided at home. 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" }, { "docid": "22897368", "title": "", "text": "Philippines. Although the availability of an alternative forum supports the defendants’ position, the other factors weigh more strongly in Gates’ favor. The district court in its order did not weigh these factors, nor did it examine whether the exercise of personal jurisdiction would be reasonable. Under the Data Disc three-prong inquiry, therefore, the district court erred in dismissing counts two and three for lack of personal jurisdiction. B. Forum Non Conveniens On November 1, 1983, the district court conditionally dismissed Gates’ complaint under the doctrine of forum non conven-iens. Because the district court had dismissed counts two and three for lack of personal jurisdiction one year earlier, this dismissal pertained only to counts one and four, which allege unauthorized use of Gates’ tradenames and trademarks. The dismissal would require Gates to pursue relief in the Philippine courts. Whether an action may be dismissed for forum non conveniens when jurisdiction is otherwise properly invoked is governed by the factors outlined in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947). The Court divided these factors into “private interest” and “public interest” factors, each of which must be weighed by the district court. As this court has noted: The private interest factors include “the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.” ... The public interest factors include the administrative difficulties flowing from court congestion; the local interest in having localized controversies resolved at home; the interest in having the trial of a diversity case in a forum that is familiar with the law that must govern the action; the avoidance of unnecessary problems in conflicts of law, or in application of foreign law; and the unfairness of burdening citizens in an unrelated forum with jury duty. Cheng v. Boeing Co., 708 F.2d 1406, 1409-10 (9th Cir.1983) (citations omitted)," }, { "docid": "23571302", "title": "", "text": "by an English professor of law and the other by an English solicitor admitted to practice in New York. Both referred to disadvantages the plaintiffs might suffer if required to sue in England or Scotland. Much of the content of these affidavits related to the substantive law of England. The district court denied the plaintiffs’ motions for reconsideration for the reasons stated in its previous order, and these appeals ensued. II. We are guided in our decision by three opinions of the Supreme Court. In Gulf Oil Co. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), the Court reviewed the history and development of the doctrine of forum non conveniens. Without attempting to catalogue all the circumstances which might lead a court to grant or deny a motion to dismiss on these grounds, the Court identified some factors which must be considered. The doctrine presupposes the availability of at least two forums in which the defendant may be sued; the defendant seeking a forum non conveniens dismissal must identify an alternative forum. Once the existence of such a forum is established the trial court must consider the private interests of the litigants and factors of public interest in determining relative convenience of the forum chosen by the plaintiff as opposed to the available alternative forum. Among the important private interest considerations are “the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.” Id. at 508, 67 S.Ct. at 843. The court must also consider problems in enforcing a judgment if one is obtained and relative advantages and obstacles to a fair trial, if any. “But unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.” Id. The Court also identified relevant public interest factors: administrative difficulties of courts with congested dockets; the burden" }, { "docid": "185668", "title": "", "text": "91 L.Ed. 1055 (1947) (explaining that the doctrine of forum non conveniens “presupposes at least two forums in which the defendant is amenable to process” and “furnishes criteria for choice between them”). In this case, there is no dispute that German courts would provide an “adequate alternative forum.” (See Satnick Decl. ¶ 9 (noting that Felix Block “is subject to the jurisdiction of the German courts”).) With that established, the Court must engage in a balancing process, weighing the private interests of the parties and the public interests involved. Id. Felix Bloch bears the burden of demonstrating that the public and private interests “ ‘tilt[ ] strongly in favor of a trial in the foreign forum.’ ” Wiwa, 226 F.3d at 100 (citations omitted). The burden on the defendant in the forum non conveniens context is deliberately heavy because “the plaintiffs choice of forum should rarely be disturbed.” Gilbert, 330 U.S. at 508, 67 S.Ct. 839. See also Peregrine Myanmar Ltd. v. Segal, 89 F.3d 41, 46 (2d Cir.1996). In 1947, the Supreme Court, in Gilbert, identified the public and private interests that should factor into a court’s forum non conveniens analysis. 330 U.S. at 508-09, 67 S.Ct. 839. Thirty-four years later, the Court summarized these factors in Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981): The factors pertaining to the private interests of the litigants included the ‘relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining the attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.’ The public factors bearing on the question included the administrative difficulties flowing from court congestion; the ‘local interest in having localized controversies decided at home’; the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action; the avoidance of unnecessary problems in conflict of laws, or in" }, { "docid": "17693865", "title": "", "text": "(7th Cir.2005) (internal quotation marks omitted). Federal courts have the discretion to dismiss a case on the ground of forum non conve-niens when an adequate available forum exists and “trial in the chosen forum would establish oppressiveness and vexation to a defendant out of all proportion to plaintiffs convenience, or the chosen forum is inappropriate because of considerations affecting the court’s own administrative and legal problems.” Sinochem Int’l Co. v. Malaysia Int’l Shipping Co., — U.S. -, 127 S.Ct. 1184, 1190, 167 L.Ed.2d 15 (2007) (alterations omitted) (quotation omitted). “Dismissal for forum non conve-niens reflects a court’s assessment of a range of considerations, most notably the convenience to the parties and the practical difficulties that can attend the adjudication of a dispute in a certain locality.” Id. (alteration omitted) (internal quotation marks omitted). The leading case recognizing and delineating the common-law doctrine of forum non conveniens is Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). See In re Factor VIII or IX Concentrate Blood Prods. Litig., 484 F.3d 951, 955 (7th Cir.2007). Gulf Oil established that both private and public interest factors ought to inform a court’s forum non conveniens decision. 330 U.S. at 508-09, 67 S.Ct. 839. The private interest factors that a court may consider include “the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.” Id. at 508, 67 S.Ct. 839. The enforceability of the judgment, if one is obtained, is also a private interest factor. Id. The public interest factors include the administrative difficulties stemming from court congestion; the local interest in having localized disputes decided at home; the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action; the avoidance of unnecessary problems in conflicts of laws or in the" }, { "docid": "7674485", "title": "", "text": "258, 268 (5th Cir.2001). “The doctrine of forum non conveniens presupposes at least two forums where the defendant is amenable to process and simply furnishes criteria for choice between them.” Dickson Marine Inc. v. Panalpina, Inc., 179 F.3d 331, 341 (5th Cir.1999). Thus, a defendant seeking a forum non conveniens dismissal must first establish the existence of an alternate forum that is both available and adequate. McLennan v. American Eurocopter Corp., Inc., 245 F.3d 403, 424 (5th Cir.2001), citing Alpine View Co. Ltd. v. Atlas Copco AB, 205 F.3d 208, 221 (5th Cir.2000). “A foreign forum is available when the entire case and all parties can come within the jurisdiction of that forum.” Id. (internal quotations omitted). “A foreign forum is adequate when the parties will not be deprived of all remedies or treated unfairly, even though they may not enjoy the same benefits as they might receive'in an American court.” Id. (internal quotations omitted); See also, In re Air Crash Disaster Near New Orleans, La., 821 F.2d 1147, 1165 (5th Cir.1987). If the defendant establishes that an adequate alternative forum is available, the defendant must then demonstrate that dismissal is appropriate because the alternative forum is more convenient, based on consideration of what are known as “private interest” and “public interest” factors. Piper Aircraft, 454 U.S. at 241 n. 6, 102 S.Ct. at 258 (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947)). The private interest factors include: [1] the “relative ease of access to sources of proof; [2] availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; [3] possibility of view of premises, if view would be appropriate to the action; and [4] all other practical problems that make trial of a case easy, expeditious and inexpensive.” Gilbert, 330 U.S. at 508, 67 S.Ct. at 843. The public interest factors to be considered.are: [1] the administrative difficulties flowing from court congestion; [2] the “local interest in having localized controversies decided at home”; [3] the interest in having the trial of a" }, { "docid": "3407888", "title": "", "text": "of the plaintiffs choice of forum. See Mercier v. Sheraton Int’l, Inc., 935 F.2d 419, 423-24 (1st Cir.1991). As a result, the defendant bears the burden of demonstrating both that: (1) an adequate alternative forum exists, and (2) considerations of convenience and judicial efficiency strongly favor litigating the claim in the alternative forum. Iragorri v. Int’l Elevator, Inc., 203 F.3d 8, 12 (1st Cir.2000). In general, the first requirement is usually satisfied if the defendant shows that an alternative forum provides redress for the type of claims alleged in the plaintiffs complaint and that the defendant is amenable to suit in the alternative forum. Id. (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n. 22, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981)). To satisfy the second requirement, the defendant must demonstrate that the balance of factors “relevant to the private and public interests implicated by the case strongly favors dismissal.” Id. (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-509, 67 S.Ct. 839, 91 L.Ed. 1055 (1947)). An illustrative list of considerations relevant to the private interest includes: “the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious, and inexpensive.” Gulf Oil Corp. v. Gilbert, 330 U.S. at 508, 67 S.Ct. 839. Factors of public interest include administrative difficulties for courts with overloaded dockets, the imposition of jury duty on a community with no connection to the underlying dispute, the “local interest in having localized controversies decided at home,” and the court’s familiarity with the law to be applied in the case. Id. at 508-509, 67 S.Ct. 839. In the usual case, the court has the discretion to grant or deny a motion to dismiss based on the doctrine of forum non conveniens after consideration of the relevant factors. The case at bar presents a different situation. 18 U.S.C. § 2334(d) limits the circumstances under" }, { "docid": "12844793", "title": "", "text": "so serious that it amounts to an abuse of the trial judge’s authority. In re Balsimo, 68 F.3d 185, 186-87 (7th Cir.1995); Rhone-Poulenc Rorer, 51 F.3d at 1295; In re Moore, 776 F.2d 136, 139 (7th Cir.1985); In re Warrick, 70 F.3d 736, 740 (2d Cir.1995). We find no such abuse of authority in the district court’s decision here. The nonstatutory doctrine of forum non conveniens permits a case to be dismissed if trial in the plaintiffs chosen forum would be oppressive and vexatious to the defendant, out of all proportion to the plaintiffs convenience, and if it is also true that an alternative foreign forum exists. Piper Aircraft, 454 U.S. at 241, 102 S.Ct. 252. In determining whether to dismiss, courts consider whether an adequate alternative forum is available to hear the case, and whether various private and public interest factors clearly indicate that the suggested alternative forum is superior. Kamel v. Hill-Rom Co., Inc., 108 F.3d 799, 802-03 (7th Cir.1997). The private interest factors considered are “the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.” Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); see also Kamel, 108 F.3d at 803. The public interest factors include “the administrative difficulties stemming from court congestion; the local interest in having localized disputes decided at home; the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action; the avoidance of unnecessary problems in conflicts of laws or in the application of foreign law; and the unfairness of burdening citizens in an unrelated forum with jury duty.” Kamel, 108 F.3d at 803 (citing Piper Aircraft, 454 U.S. at 241 n. 6, 102 S.Ct. 252). The defendant carries the burden of persuading the district court that a" }, { "docid": "17146703", "title": "", "text": "French courts refuse to accept jurisdiction over the matter. I. “[T]he central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 256, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). There are two threshold questions in the forum non conveniens determination: first, whether there is an adequate alternative forum in which the defendant is amenable to process, see id. at 254 n. 22, 102 S.Ct. 252, and second, whether foreign law applies, see Rivendell Forest Prod., Ltd. v. Canadian Pac. Ltd., 2 F.3d 990, 994 (10th Cir.1993). If the answer to either of these questions is no, the forum non conve-niens doctrine is inapplicable. If, however, the answer to both questions is yes, the court goes on to weigh the private and public interests bearing on the forum non conveniens decision. The private interest factors to be considered are: (1) the relative ease of access to sources of proof; (2) availability of compulsory process for compelling attendance of witnesses; (3) cost of obtaining attendance of willing non-party witnesses; (4) possibility of a view of the premises, if appropriate; and (5) all other practical problems that make trial of the case easy, expeditious and inexpensive. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). The public interest factors include: (1) administrative difficulties of courts with congested dockets which can be caused by cases not being filed at their place of origin; (2) the burden of jury duty on members of a community with no connection to the litigation; (3) the local interest in having localized controversies decided at home; and (4) the appropriateness of having diversity cases tried in a forum that is familial’ with the governing law. See id. at 508-09, 67 S.Ct. 839. As the district court noted, normally there is a strong presumption in favor of hearing the case in the plaintiffs chosen forum. See Piper, 454 U.S. at 255, 102 S.Ct. 252. That presumption is overcome “only when the private and public interest factors clearly point" }, { "docid": "7711398", "title": "", "text": "of forum non con-veniens. The federal doctrine of forum non conveniens “leaves much to the discretion of the court to which [a] plaintiff resorts” to decline to examine a matter in favor of its likely resolution in another forum. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). Such a “transfer” is proper where'moving the matter to another forum is more convenient for the parties and witnesses, is in the interest of justice, and where the alternative forum is located abroad. See American Dredging Co. v. Miller, 510 U.S. 443, 449 n. 2, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994) (citations omitted). A court conducts its forum non conveniéns analysis in two steps. First, to grant a motion to dismiss, “a court must satisfy itself that the litigation may be conducted elsewhere against all defendants.” PT United Can Co. v. Crown Cork & Seal Co., 138 F.3d 65, 73 (2d Cir.1998) (citation omitted). If ah adequate alternative forum exists, the court must then car'efully consider private and public interests affected by transferring the matter. See id. (citation omitted). The court is guided in its effort by important considerations articulated by the Supreme Court in Gulf Oil, including: the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. Gulf Oil, 330 U.S. at 508, 67 S.Ct. 839. The general rule under Gulf Oil requires a court to defer to a plaintiffs choice of forum unless the forum non conveniens factors strongly favor dismissal, see id., especially where the plaintiff resides in the forum state. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-56, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981) (stating that a court reasonably assumes that a plaintiffs home forum is convenient). Nonetheless, we are persuaded by the approach to forum non conveniens analysis adopted in Kultur Int’l" }, { "docid": "21448858", "title": "", "text": "proper forums. Accordingly, the court will deny Defendant’s motion to dismiss for improper venue. B. Forum Non Conveniens The doctrine of forum non conveniens provides the district court with the discretion to dismiss a case where it finds that “ “when weighed against [the] plaintiffs choice of forum, the relevant public and private interests strongly favor a specific, adequate, and available alternative forum.’ ” Kontoulas v. A.H. Robins Co., Inc., 745 F.2d 312, 315 (4th Cir.1984) (quoting Veba-Chemie A.G. v. M/V Getaftx, 711 F.2d 1243, 1245 (5th Cir.1983)); see Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255, 102 S.Ct. 252, 265, 70 L.Ed.2d 419 (1981). Because the court finds that the relevant public and private interests do not strongly favor resolution of this dispute in England, Defendant’s motion to dismiss based on forum non conveniens will be denied. In Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947), the Supreme Court identified the relevant public and private interests that a court should consider in evaluating a forum non conveniens motion. The relevant private interests include: the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining willing, witnesses; possibility of view of the premises if view would be appropriate to the action; and all other practical problems that make trial of a ease easy, expeditious, and inexpensive. Id. The relevant public interests include: administrative problems resulting from court congestion; the local interest in having localized controversies decided at home; the interest in having trial of a diversity case in a forum that is at home with the law that must govern the action; the avoidance of unnecessary problems and conflicts of law or the application of foreign law; and the unfairness of burdening citizens in an unrelated forum with jury duty. Id. The Supreme Court refined the forum non conveniens inquiry in Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981), by stressing that convenience is the critical concern, and that the district court" }, { "docid": "19036131", "title": "", "text": "of discretion; where the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419 (1981). Specifically, when applying abuse of discretion review, the Supreme Court has instructed appellate courts not to “los[e] sight of this rule, and substitute[ their] own judgment for that of the District Court.” Id. at 266-67. IV. DISCUSSION When it made its motion for dismissal on grounds of forum non conveniens, Cessna must have demonstrated “that (1) an adequate alternative forum [was] available, (2) the public and private factors weigh[ed] in favor of dismissal, and (3) the plaintiffs could] reinstate [their] suit in the alternative forum without undue convenience or prejudice.” See Leon v. Million Air, Inc., 251 F.3d 1305, 1310-11 (11th Cir.2001). The Supreme Court outlined a number of private and public interest factors for courts to consider in a forum non conveniens determination. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947). In Gilbert, the Court listed these factors in detail: An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforceability of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, “vex,” “harass,” or “oppress” the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the" } ]

[ { "docid": "22828640", "title": "", "text": "(See Plaintiffs’ brief on appeal at 13, 17.) We note that such an injury was not alleged in the Complaint, and it is difficult to view it as other than conjectural or hypothetical, given that plaintiffs, several years ago, defaulted on their loans. See, e.g., Rajamin v. Deutsche Bank National Trust Co., No. B237560, 2012 WL 5448401, at *1-3 & n. 3 (Cal.Ct.App.2d Dist. Nov. 8, 2012) (“Rajamin’s California case”) (affirming dismissal, for lack of standing, of Rajamin’s claim for declaratory relief as to Deutsche Bank’s ownership of his promissory note, and noting that Rajamin’s home had been sold in foreclosure). We conclude that plaintiffs failed to allege injuries sufficient to show constitutional standing to pursue their claims. B. Prudential Standing Even if plaintiffs had Article III standing, we conclude that they lack prudential standing. The “prudential standing rule ... normally bars litigants from asserting the rights or legal interests of others in order to obtain relief from injury to themselves.” Warth v. Seldin, 422 U.S. at 509, 95 S.Ct. 2197. “[T]he plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Id. at 499, 95 S.Ct. 2197. Plaintiffs have advanced several theories for prudential standing. Each fails. 1. The Breach-of-Contract Theory The principles that any contractual provision “may be waived by implication or express intention of the party for whose benefit the provision inures,” Wolff & Munier, Inc. v. Whiting-Turner Contracting Co., 946 F.2d 1003, 1009 (2d Cir.1991) (internal quotation marks omitted), and that strangers may not assert the rights of those who “do not wish to assert them,” Singleton v. Wulff, 428 U.S. 106, 113-14, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (plurality opinion), underlie the rule adhered to in New York — whose law governs the assignment agreements (see Third Amended Complaint ¶ 29) — that the terms of a contract may be enforced only by contracting parties or intended third-party beneficiaries of the contract, see, e.g., Mendel v. Henry Phipps Plaza West Inc., 6 N.Y.3d 783, 786, 811 N.Y.S.2d 294," } ]

[ { "docid": "10864631", "title": "", "text": "debts. The Cartees therefore have no dog in this fight over deed priority. Consequently, the Cartees are not in a position to. chahenge the’ relative priority of the Citizens Deed of Trust versus the Regions Deed of Trust because, in so doing, they would be asserting Regions’s rights instead of'their-own. See Warth v. Seldin, 422 U.S. 490, 509, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (“[T]he prudential standing rule ...' normally bars litigants from asserting the rights or legal interests of others in order to obtain relief from injury to themselves.”); JPMorgan Chase Bank, N.A. v. First Am. Title Ins. Co., 750 F.3d 573, 581-82 (6th Cir.2014) (applying prudential standing principles to a defendant who “defend[ed] against a claim by asserting a legal right belonging to a third party”); Pahssen v. Merrill Cmty. Sch. Dist., 668 F.3d 356, 363 (6th Cir.2012) (noting “the general principle that plaintiffs must assert their own legal rights and interests, and cannot rest a claim to relief on the rights or interests of third parties”); In re Adoption of M.J.S., 44 S.W.3d 41, 60 n. 6 (Tenn.Ct.App.2000) (“[A]s a general rule, a litigant does not have standing to assert another person’s legal rights.”). The Cartees’ claim regarding the acknowledgement defect therefore fails. But this conclusion does little to dissipate the perplexing atmosphere enveloping this case. What, after .all, are the Cartees fighting for, given that they no longer have a claim of title to the Property and do not dispute the validity (as opposed to the priority) of the various liens? Although the Cartees’ appellate briefing fails to elucidate this puzzle, their counsel provided a path through the fog by asserting at oral argument that the foreclosure sale was commercially unreasonable because the Property was sold for $1,513,000 despite allegedly being worth $2,500,000 to $3,000,000. . We therefore deduce that the Cartees’ true goal is to invalidate the foreclosure sale in the hope that the Property will be resold at a higher price, with the extra money,going towards defraying the debts still owed to their other creditors. Unlike their argument concerning the relative priority of" }, { "docid": "16481395", "title": "", "text": "there are prudential limits on a court’s exercise of jurisdiction. These prudential limits are judicially imposed and “are ‘founded in concern about the proper — and properly limited — role of the courts in a democratic society.’” Bennett v. Spear, — U.S. —, —, 117 S.Ct. 1154, 1161, 137 L.Ed.2d 281 (1997) (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975)). Two prudential limits are relevant to this case. First, only in exceptional eases may a party have standing to assert the rights of another. Warth, 422 U.S. at 499, 95 S.Ct. at 2205. This “third-party standing” rule thus “normally bars litigants from asserting the rights or legal interests of others in order to obtain relief from injury to themselves.” Id. at 509, 95 S.Ct. at 2210. In addition, plaintiffs alleging a violation of a constitutional or statutory right must demonstrate that they are within the “zone of interests” of the particular provision invoked. Bennett, — U.S. at —, 117 S.Ct. at 1161. To satisfy this prudential requirement, a plaintiff must show that “the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Association of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); see also Bennett, — U.S. at —, 117 S.Ct. at 1161. There is no question that the Oehrleins plaintiffs, that is, various waste haulers and processors, have standing. Ordinance 12 prohibits haulers from delivering designated waste to non-designated facilities. Haulers who violate the Ordinance are subject to a wide variety of sanctions. The record is undisputed that the County has, in fact, subjected various haulers, including some of the hauler plaintiffs, to such penalties. Haulers subject to the Ordinance thus have suffered an actual or imminent injury in fact. Furthermore, the Ordinance harms processors such as the landfill plaintiffs who wish to participate in the market for Hennepin County waste by prohibiting access to that waste. The processor plaintiffs have therefore also" }, { "docid": "12196564", "title": "", "text": "(1982) (quoting Schlesinger, 418 U.S. at 216, 94 S.Ct. 2925). When Western Pacific and EqualNet brought this lawsuit as putative class representatives, see Complaint ¶ 50, they were indisputably members of the class they sought to represent. We conclude that the subsequent assignment of their claims and interests in this litigation to Cordes and Creditors Trust, respectively, did not deprive Cordes and Creditors Trust of the ability, as assignees, to continue to seek recognition as representatives of the class. a. Cordes and Creditors Trust’s standing to pursue these claims as a class action. The defendants do not contest the validity of the assignments of the bankrupts’ antitrust claims to Cordes and Creditors Trust in this instance. See Def. Br. at 23; see also D’Ippolito v. Cities Serv. Co., 374 F.2d 643, 647 (2d Cir.1967) (“Antitrust claims have been held assignable.”). It is undisputed that Cordes and Creditors Trust acquired through Western Pacific’s and EqualNet’s bankruptcy proceedings all or a portion of whatever substantive rights Western Pacific and EqualNet held at the time of their respective bankruptcies to recover for the injuries alleged in the Complaint. Nevertheless, the defendants argue, because neither Cordes nor Creditors Trust is itself a member of the class as pleaded, neither has standing to act as a class representative. Standing has both constitutional dimensions rooted in Article Ill’s Case or Controversy Clause and prudential dimensions that are “closely related to Art. Ill concerns but [are] essentially matters of judicial self-governance.” Warth v. Seldin, 422 U.S. 490, 498-500, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The rule that “a class representative must be part of the class,” Falcon, 457 U.S. at 156, 102 S.Ct. 2364 (citation and internal quotation marks omitted), is one of prudential standing, related to the broader principle that “the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties,” Warth, 422 U.S. at 499, 95 S.Ct. 2197; see also Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (recognizing “the general prohibition" }, { "docid": "22129375", "title": "", "text": "the requirement that the claim the applicant seeks intervention in order to assert be a claimas to which the applicant is the real party in interest. The real party in interest requirement of Rule 17(a), Fed. R.Civ.P., “applies to intervenors as well as plaintiffs,” as does also the rule that “a party has no standing to assert a right if it is not his own.” United States v. 936.71 Acres of Land, 418 F.2d 551, 556 (5th Cir.1969). Accord Piambino, 610 F.2d at 1321. As we stated in United States v. 936.71 Acres of Land: “... it is elementary that, “ ‘The “real party in interest” is the party who, by substantive law,“possesses the right sought to be enforced, apd-not necessarily the person who will ultimately benefit from the recovery.’ Barron and Holtzoff, Federal Practice and Procedure, § 482 (Wright ed. 1961).” 418 F.2d at 556. See also In re Penn Central Commercial Paper Litigation, 62 F.R.D. 341, 346 (S.D.N.Y.1974), aff'd without op., 515 F.2d 505 (2d Cir.1975) (“... an interest, to satisfy the requirements of Rule 24(a)(2) ... must be based on a right which belongs to the proposed intervenor rather than to an existing party ...”). Cf. Heyman v. Exchange National Bank of Chicago, 615 F.2d 1190, 1193 (7th Cir.1980) (intervention requires “ ‘a right to maintain a claim for the relief sought’ ”). Analogously, intervention has been held subject to the prudential standing requirement that “the presence of harm to a party does not permit him to assert the rights of third parties in order to obtain redress for himself.” DuPree v. United States, 559 F.2d 1151, 1153 (9th Cir.1977). For this proposition, DuPree cites Warth v. Seldin, 422 U.S. 490, 509, 95 S.Ct. 2197, 2210, 45 L.Ed.2d 343 (1975), where the Supreme Court applied “the prudential standing rule that normally bars litigants from asserting the rights or legal interests of others in order to obtain relief from injury to themselves.” See also id. at 499, 95 S.Ct. at 2205; Valley Forge College v. Americans United, 454 U.S. 464, 474-75, 102 S.Ct. 752, 759-60, 70 L.Ed.2d 700" }, { "docid": "18985231", "title": "", "text": "Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). A party must demonstrate both constitutional standing and prudential standing. Sullivan v. Syracuse Housing Authority, 962 F.2d 1101, 1106 (2d Cir.1992). The constitutional standing requirement ensures that federal courts do not overreach and attempt to exert power not granted to them by Article III of the Constitution. Id. Article III of the Constitution limits the powers of federal courts to determine only cases or controversies. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (discussing the division of constitutional power in the federal government). 1. Constitutional Standing Constitutional standing consists of three parts. A party must suffer an “inju ry in fact” — or “an invasion of a legally protected interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical.” Id. (internal citations and quotation marks omitted). Next, a party must demonstrate causation; the court must be able to trace the alleged injury to the complained-of acts. Id. (quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976)) (internal quotation marks omitted). Lastly, a favorable decision must be “likely” to remedy the alleged injury. Id. Here, it appears that the 1031 Debtors do not contest Boulder’s Article III standing to argue that the funds held by the 1031 Debtors, and eventually transferred to Boulder, were actually held in trust for Exchangers. Indeed, even if they did not concede this point, the Supreme Court has clearly articulated that no constitutional standing issue arises when, as here, a litigant attempts to assert the rights of a third party defensively. Warth, 422 U.S. at 500 n. 12, 95 S.Ct. 2197 (observing that when a party “asserts the rights of third parties defensively” there is no issue of constitutional standing). Instead, the Trustee argues that Boulder lacks prudential standing to assert the rights of the Exchangers defensively. 2. Prudential Standing Prudential standing rules are not as easily distilled as constitutional standing rules. But both constitutional standing and prudential standing is" }, { "docid": "10864630", "title": "", "text": "2004) (recognizing the propriety of foreclosing on a junior mortgage); Bolerjack v. Fid. Fed. Sav. & Loan Ass’n, No. 88-217-11, 1988 WL 126839, at *8 (Tenn.Ct.App. Nov. 30, 1988) (same). The consequence would simply be that Ingram’s title would be subject to Regions’s hen. See Davidson; 2004 WL 2533840, at *2 (noting that “a purchaser under a foreclosure sale takes subject to the senior mortgage[]” when the senior “mortgagee is not made a party to the action”). ■ But Regions has effectively relinquished its lien in exchange for the surplus proceeds. (The Cartees make no claims with regard to any remaining debt owed to Regions pursuant to their • credit agreement with Regions, and-we express no opinion on that issue.) Accordingly, even if Regions’s lien had priority over Citizens’s hen, the foreclosure sale would have still gone forward, Ingram would still have title to the Property, the Cartees would still have no claim to the Property or the surplus proceeds, and the $1,513,000 sale proceeds would have still gone to their creditors to reduce their debts. The Cartees therefore have no dog in this fight over deed priority. Consequently, the Cartees are not in a position to. chahenge the’ relative priority of the Citizens Deed of Trust versus the Regions Deed of Trust because, in so doing, they would be asserting Regions’s rights instead of'their-own. See Warth v. Seldin, 422 U.S. 490, 509, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (“[T]he prudential standing rule ...' normally bars litigants from asserting the rights or legal interests of others in order to obtain relief from injury to themselves.”); JPMorgan Chase Bank, N.A. v. First Am. Title Ins. Co., 750 F.3d 573, 581-82 (6th Cir.2014) (applying prudential standing principles to a defendant who “defend[ed] against a claim by asserting a legal right belonging to a third party”); Pahssen v. Merrill Cmty. Sch. Dist., 668 F.3d 356, 363 (6th Cir.2012) (noting “the general principle that plaintiffs must assert their own legal rights and interests, and cannot rest a claim to relief on the rights or interests of third parties”); In re Adoption of M.J.S.," }, { "docid": "15832966", "title": "", "text": "at p. 1. In the alternative, D’Ag-nillo moves for leave to submit an amended complaint detailing his injuries pursuant to Rule 15, Fed.R.Civ.P. Limitations on standing to sue derive from two sources, constitutional and prudential. Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 2204-05, 45 L.Ed.2d 343 (1975). As a matter of constitutional law, Article III limits the jurisdiction of the federal courts to actual cases and contro versies. Thus, where a plaintiff lacks constitutional standing, a federal court has no subject matter jurisdiction. In Re. Catholic Conference, 885 F.2d 1020 (2d Cir.1989). Secondly, as a matter of judicial self-governance, “the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, supra, 422 U.S. at 499, 95 S.Ct. at 2205. In order to establish constitutional standing, the plaintiff carries the burden of alleging facts that demonstrate: (1) that he “personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant”; (2) that the injury “fairly can be traced to the challenged action of the defendant”; and (3) that the injury “is likely to be redressed by a favorable decision.” Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). Once constitutional standing has been determined, the courts must ensure that they are not being “called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights.” Warth, supra, 422 U.S. at 500, 95 S.Ct. at 2206. In his original complaint, D’Agnil-lo states only that his interests and those of other citizens of Yonkers are “within the zone of interests intended to be protected by [NEPA and HCDA]” because they are residents of the areas involved in the Yonkers litigation; and that they “are being injured in fact by the defendants’ failure to prepare" }, { "docid": "14224427", "title": "", "text": "of standing” are “judicially self-imposed limits on the exercise of federal jurisdiction,” and may be altered. Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (internal quotation marks omitted). They are “founded in concern about the proper — and properly limited — role of the courts in a democratic society.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Prudential principles are “closely related to Art. Ill concerns but essentially matters of judicial self-governance.” Id. at 500, 95 S.Ct. 2197. Unlike the requisites of constitutional standing, prudential limits “can be modified or -abrogated by Congress.” Bennett, 520 U.S. at 162, 117 S.Ct. 1154. One prudential limit on standing is- the principle “that when the asserted harm is a ‘generalized; grievance’ shared in - substantially equal measure by all or a large class of citizens, that harm alone normally does not warrant [the]' exercise of-jurisdiction.” Warth, 422 U.S. at 499, 95 S.Ct. 2197. Another prudential principle is that a plaintiff may ordinarily assert only his own legal rights; not those of third parties.' Id:; see also Singleton v. Wulff, 428 U.S. 106, 113, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976). This rule against third-party standing is not absolute. For example, a plaintiff may assert the legal rights of another as a “next friend” when he\"or she-establishes: “(1) a close relationship to the injured party and (2) a bamer to the injured party’s ability to assert its own interests.” W.R. Huff, 549 F.3d at 109 (citing Kowalski v. Tesmer, 543 U.S. 125, 130, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004)). Similarly, a physician or other professional may raise the constitutional rights, but generally not the statutory rights, of his or her patients. See, e.g,, Griswold v. Connecticut, 381 U.S. 479, 480-81, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (holding that licensed physician and non-physician, director of family-planning group had standing to raise the • constitutional rights of people “with whom they had a professional relationship” in challenging state law against prescribing contraceptives); Ei senstadt v. Baird, 405 U.S. 438, 443-46, 92 S.Ct." }, { "docid": "11893978", "title": "", "text": "the assignment violated the PSA, BNYM cannot collect on the note. The bankruptcy court and the district court correctly held that Ms. Jepson lacks standing to raise a challenge based on violations of the PSA because she is not a third-party beneficiary under the agreement. The “prudential standing rule ... normally bars litigants from asserting the rights or legal interests of others in order to obtain relief from injury to themselves.” Warth v. Seldin, 422 U.S. 490, 509, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Instead, a “plaintiff generally must assert his own legal rights and interests, and cannot rest- his. claim to relief on the legal rights or interests of third parties.” Id. at 499, 95 S.Ct. 2197; see also Edgewood Manor Apartment Homes, LLC v. RSUI Indem. Co., 733 F.3d 761, 771 (7th Cir.2013). The text of the PSA states that “[t]his agreement shall be construed in accordance with and governed by the substantive laws of the State of New York.” Therefore, Ms. Jepson must establish that, under the law of New York, she has a cognizable interest that permits her to challenge the validity of the PSA. We think that; at this point, it is well established that she does not. As our colleagues in the Second Circuit have stated, “under New York law, only the intended beneficiary of a private trust may enforce the terms of the trust.” Rajamin v. Deutsche Bank Nat’l Trust Co., 757 F.3d 79, 88 (2d Cir.2014); see also Cashman v. Petrie, 14 N.Y.2d 426, 252 N.Y.S.2d 447, 201 N.E.2d 24, 26 (1964) (“A person who might incidentally benefit from the performance of a trust but-is not a beneficiary thereof cannot maintain a suit .... to enjoin a breach.”); Tran v. Bank of New York, No. 13 Civ. 580, 2014 WL 1225575, at *3, (S.D.N.Y. Mar. 24, 2014) (collecting New York cases). New York courts have held uniformly that “a mortgagor whose loan is owned by a trust” is not an intended beneficiary of a trust, and “does not ’ have standing to challenge the [trusteej’s possession or status as assignee of" }, { "docid": "3938131", "title": "", "text": "have argued that this Court lacks subject matter jurisdiction over this action because all of the injuries alleged in the Complaint were suffered by Cheeks’s corporation, CNA, and Cheeks lacks standing to sue for CNA’s injuries. See [31] Br. Supp. Defs. Western Surety Co. & Paul T. Bruflat’s Rule 12(b)(6) Mot. to Dismiss at 7-9; [81] District Defs.’ Mem. P. & A. Supp. Their Mot. to Dismiss at 13-14; [83] P. & A. Supp. WASA Defs.’ Mot. to Dismiss at 4-6; [88] Anchor Constr. Corp.’s Mot. to Dismiss at 3-4; [105] Reply to Pl.’s Response to Civil Construction LLC’s Mot. to Dismiss at 3^4. Because standing is essential to the Court’s subject matter jurisdiction, the Court shall determine whether Cheeks has standing before turning to the merits of the claims asserted in the Complaint. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 98, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). A. Standing To establish the “irreducible constitutional minimum of standing,” a plaintiff must show: (1) that he or she suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent; (2) a causal relationship between the injury and the challenged conduct; and (3) that the injury will likely be remedied by a favorable court decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Beyond this constitutional minimum, the federal courts have imposed prudential limitations on who may invoke the courts’ judicial powers. Foremost among these prudential limitations is the rule that a “plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The general prohibition on third party standing is based on the principles that courts should not adjudicate the rights of third parties unnecessarily and that third parties will usually be the best proponents of their own rights. See Singleton v. Wulff 428 U.S. 106, 113-14, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976)" }, { "docid": "22876282", "title": "", "text": "in fact, and other so called “prudential limitations.” Allstate Insurance Co. v. Wayne County, 760 F.2d 689, 692-93 (6th Cir.1985). “Perhaps the most prominent of these prudential limitations is that a party ‘generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.’ ” Id. at 693 (quoting Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975)). Courts do not decide cases based on the rights of third parties because “it may be that in fact the holders of those rights either do not wish to assert them, or will be able to enjoy them regardless of whether the in-court litigant is successful or not,” and “third parties themselves usually will be the best proponents of their own rights.” Singleton v. Wulff, 428 U.S. 106, 113-14, 96 S.Ct. 2868, 2873-74, 49 L.Ed.2d 826 (1976). However, a party will be allowed to assert the rights of third persons “[w]here practical obstacles prevent a party from asserting rights on behalf of itself,” if the party can demonstrate “injury in fact” as required by Art. Ill and “can reasonably be expected properly to frame the issues and present them with the necessary adversarial zeal.” [Secretary of State of Maryland v.] Joseph H. Munson Company, Inc., [467 U.S. 947, 104 S.Ct. 2839, 2847, 81 L.Ed.2d 786 (1984)]. Allstate Insurance Co., 760 F.2d at 693 (footnote omitted). In Adair, plaintiff, who was injured while operating a conveyor, challenged on equal protection grounds an Ohio ten-year statute of repose for actions based on defective improvements to real property, contending that it denied equal protection to certain classes of potential defendants. Judge Krupansky concluded that “the policies and philosophies underlying [the] limited departures from the general rule that a litigant may not assert the constitutional rights of third persons are inapplicable to the instant litigation and that Adair has no standing to present the instant equal protection challenge.” 541 F.Supp. at 1130. If appellant’s equal protection challenge involved only the statute’s classification between manufacturers and other potential" }, { "docid": "12862441", "title": "", "text": "prove that it has constitutional standing. Specifically, under the “case or controversy” requirement of Article III of the United States Constitution, a party “must have a ‘personal stake in the outcome of the controversy5 ” to have standing. Breeden v. Kirkpatrick & Lockhart, LLP, 268 B.R. 704, 708 (S.D.N.Y. 2001) (citation omitted), aff'd sub nom. Breeden v. Kirkpatrick & Lockhart LLP (In re Bennett Funding Grp.), 336 F.3d 94 (2d Cir. 2003). Similar to the prudential standing requirements, “[a] party can only assert its own legal rights and cannot assert the rights of third-parties.” Id. Furthermore, “[t]he Article] III judicial power exists only to redress or otherwise to protect against injury to the complaining party, even though the court’s judgment may benefit others collaterally.” Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). To prove constitutional standing, a party must establish “an invasion of a legally protected interest” that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” See Spokeo, Inc. v. Robins, — U.S. -, 136 S.Ct. 1540, 1548, 194 L.Ed.2d 635 (2016) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)); see also Clapper v. Amnesty Int’l USA, 568 U.S. 398, 401-02, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (explaining that the theory of future injury is “too speculative to satisfy the well-established requirement that threatened injury must be certainly impending” and that a party “cannot manufacture standing by choosing to make expenditures based on hypothetical future harm”) (internal quotation marks omitted). Non-parties to a contract ordinarily do not have a “concrete and particularized injury.” See In re Caldor, Inc. NY, 193 B.R. 182, 186 (Bankr. S.D.N.Y. 1996) (concluding that a bank that was lender to the landlord of a site leased to the debtor lacked constitutional standing to contest the debtor’s motion for order authorizing the debtor to lease a new site); see also Savage & Associates, P.C. v. Mandl (In re Teligent, Inc.), 417 B.R. 197, 210 (Bankr. S.D.N.Y. 2009) (noting that a non-party could not challenge the settlement agreement because" }, { "docid": "3485483", "title": "", "text": "to create a substantial controversy when, as here, the plaintiff shows an appreciable threat of injury flowing directly from the statute.”). As for redressibility, an injunction against enforcing the reporting statute in the challenged context would redress Plaintiffs’ injury because it would no longer be uncertain whether Plaintiffs could be prosecuted for failing to report sexual activity by minor age-mates where, in their opinion, there is no harm to the minors. They would thus no longer lack “fair notice” as to the scope of the reporting statute. Therefore, Plaintiffs have satisfactorily demonstrated standing to challenge the reporting statute. 2. Third-party or “Jus Tertii” Standing Even though they can satisfy the constitutional requirements for standing, Plaintiffs face a potential prudential restriction on their ability to assert the constitutional rights of their minor patients and clients. The Supreme Court has held that “even when the plaintiff has alleged injury sufficient to meet the ‘case or controversy’ requirement, ... the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); see also Flast v. Cohen, 392 U.S. 83, 99 n. 20, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) (“[A] general standing limitation imposed by federal courts is that a litigant will ordinarily not be permitted to assert the rights of absent third parties.”). This rule, however, is not absolute. Under the doctrine of “third-party” or “jus tertii” standing, Plaintiffs may assert the rights of others not before the court if they can “make two additional showings.” Kowalski v. Tesmer, 543 U.S. 125, 130, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004). First, Plaintiffs must show that “the party asserting the right has a ‘close’ relationship with the person who possesses the right.” Id. Second, Plaintiffs must show that “there is a ‘hindrance’ to the possessor’s ability to protect his own interests.” Id.; see also Terrell v. INS, 157 F.3d 806, 809 (10th Cir.1998) (“Third-party standing requires not only an injury in fact and a" }, { "docid": "13944295", "title": "", "text": "mass toxic tort actions — the most practical way to vindicate plaintiffs’ rights, if there are such rights under international law, and if there is jurisdiction under the ATS, would be via some association such as VAVAO. Considering the geographic scope (much of the territory of Vietnam) of the claims, the nature of the claims (complex in law and fact), the number of persons affected (millions), the difficulty of prosecution (in a foreign land with different procedures and substantive law), and the importance to this country and the world of the enforcement of international law, VAVAO’s standing should be recognized. VAVAO, though apparently an ad hoc organization designed and organized primarily to prosecute Agent Orange claims, can be said to represent both itself and its members. Under Article III of the Constitution, a court’s power to redress injury extends only to parties who have suffered “ ‘some threatened or actual injury’ ” resulting from an alleged illegal action. Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (quoting Linda R.S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973)). As a prudential matter, such a litigant generally “ ‘must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights and interests of third parties.’ ” Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 474, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (quoting Warth, 422 U.S. at 499, 95 S.Ct. 2197). An association satisfies constitutional standing requirements when seeking judicial relief in its own right to redress injury to the organization itself. In limited circumstances, such as those in the instant case, an organization also may have “association standing” in a representative capacity to assert claims on behalf of its members. See Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); Warth, 422 U.S. at 515-16, 95 S.Ct. 2197. In Hunt, the Supreme Court constructed the framework for assessing association standing. 432 U.S. at 343," }, { "docid": "8401163", "title": "", "text": "by their employer, Rock Island. In J.F. Shea we held that an employee did not have standing to challenge on constitutional grounds a construction contract awarded to his employer’s competitor under a local business preference rule. Id. at 748. Despite claiming that the award threatened his job prospects, we held that the employee had not alleged a cognizable injury distinct from his employer’s. Id. at 748. This bootstrapped claim was not allowed because it amounted to the plaintiff “resting his claim to relief on the legal rights or interests of [a] third party.” Id. (citing Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). In denying standing, we observed that “because employees must allege a separately cognizable injury, employees generally do not have standing to assert claims of the corporation.... ” J.F. Shea, 992 F.2d at 749. From this, the government concludes that the plaintiffs cannot establish injury-in-fact because they are really asserting the claims of Rock Island. This conclusion, however, misconstrues the standing discussion in J.F. Shea. The concern in that case was not constitutional but prudential. 992 F.2d at 749; Warth, 422 U.S. at 499, 95 S.Ct. 2197 (“[e]ven when the plaintiff has alleged injury sufficient to meet the ‘case or controversy requirement, this Court has held that the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties”). Whether a plaintiff suffering injury-in-fact is properly asserting his own rights, or improperly asserting those of another, is a prudential question. Warth, 422 U.S. at 500, 95 S.Ct. 2197 (standing concerns beyond the Article III minimum are “essentially matters of judicial self-governance”). The plaintiff in J.F. Shea was denied standing not because he failed to allege a constitutionally sufficient injury, but because he was asserting rights which were not (even arguably) his own. 992 F.2d at 749. Whether the plaintiffs in this case are asserting their own rights and interests is dealt with below. But as discussed above, they have alleged sufficient injury-in-fact. That Rock Island can also claim" }, { "docid": "18078778", "title": "", "text": "plead concrete and particularized injury); see also Zutel v. Wells Fargo Bank, N.A., No. 12-CV-3656 (RRM)(VMS), 2014 WL 4700022, at *4 (E.D.N.Y. Sept. 22, 2014) (relying on Rajamin). Second, the Plaintiffs fail to satisfy the prudential elements of standing. “The ‘prudential standing rule ... normally bars litigants from asserting the rights or legal interests of others in order to obtain relief from injury to themselves.’ ” Rajamin, 757 F.3d at 86 (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). The “Plaintiffs lack prudential standing here because they are not parties to, nor third[-]party beneficiaries of, the Assignment or the PSA.” Zutel, 2014 WL 4700022, at *5; Rajamin, 757 F.3d at 86 (affirming dismissal for lack of prudential standing); Boco, 2014 WL 1312101, at *3 (dismissing for lack of standing because the plaintiff was not party to, or third-party beneficiary of, assignment and the PSA); Tamir, 2013 WL 4522926, at *3 (“Plaintiff is not a party to the mortgage assignment, nor is there language in the governing loan documents or other allegations suggesting that Plaintiff is a third-party beneficiary of that agreement.”), appeal withdrawn (Jan. 13, 2014); Pollak v. Bank of Am., No. 12 CV 7726CVB), 2013 WL 4799264, at *3 (S.D.N.Y. Aug. 27, 2013) (“the question of who owns plaintiffs Mortgage is irrelevant for purposes of this case, as plaintiff admits he obtained two loans from Countrywide to purchase the Property. Common sense dictates that the mere fact there may be a dispute as to which entity has legal ownership of the Mortgage does not obviate plaintiffs contractual obligation to repay the loans.”), appeal withdrawn (Mar. 14, 2014); Karamath v. U.S. Bank, N.A., No. 11-CV-1557 (NGG)(RML), 2012 WL 4327613, at *7 (E.D.N.Y. Aug. 29, 2012) (“[P]laintiff is not a party to the PSA or to the Assignment of Mortgage, and is not a third-party beneficiary of either, and therefore has no standing to challenge the validity of that agreement or the assignment.”), rep. and recommendation 'adopted, 2012 WL 4327502 (E.D.N.Y. Sept. 20, 2012). In an effort to circumvent their lack of standing, the" }, { "docid": "6223419", "title": "", "text": "1435 (8th Cir.1993) (citing McFarlin v. Newport Special Sch. Dist., 980 F.2d 1208, 1210 (8th Cir.1992)). In its constitutional dimension, standing imports justiciability: whether the plaintiff has made out a “case or controversy” between himself and the defendant within the meaning of Art. III. This is the threshold question in every federal case, determining the power of the court to entertain the suit. As an aspect of justiciability, the standing question is whether the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court’s remedial powers on his behalf. The Art. Ill judicial power exists only to redress or otherwise to protect against injury to the complaining party, even though the court’s judgment may benefit others collaterally. A federal court’s jurisdiction therefore can be invoked only when the plaintiff himself has suffered some threatened or actual injury resulting from the putatively illegal action. Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (citations and internal quotation marks omitted). Additionally, under the prudential limits of the standing doctrine, “even when the plaintiff has alleged injury sufficient to meet the ‘case or controversy’ requirement, [the Supreme Court] has held that the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Id. at 499, 95 S.Ct. 2197. “For purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.” Id. at 501, 95 S.Ct. 2197. In the present case, Potthoff contends that the district court erred in granting Morin judgment on the pleadings on his claim pursuant to 42 U.S.C. § 1983. Potthoff maintains that, in dismissing his claim for lack of standing, the district court failed to accept as true all material facts pled in the complaint and to draw all reasonable inferences from" }, { "docid": "16481394", "title": "", "text": "the Commerce Clause. II. DISCUSSION A. Standing The County maintains that both the hauler/landfill plaintiffs and the waste generator plaintiffs lack standing to bring this action. The district court found that both sets of plaintiffs have standing. Standing is the constitutional requirement, imposed by the “cases or controversies” provision of Article III, that a plaintiff must allege a judicially cognizable and redressable injury in order to pursue a lawsuit. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60, 112 S.Ct. 2130, 2135-36, 119 L.Ed.2d 351 (1992). To establish standing, a plaintiff must demonstrate three minimal constitutional requirements: (1) an “injury in fact” that is both (a) concrete and particularized, and (b) actual or imminent, rather than conjectural or hypothetical; (2) a causal connection between the alleged injury and the defendant’s conduct; that is, that the injury is “fairly traceable” to the challenged action; and (3) that it is likely that a favorable decision will redress the injury. Id. at 560-61, 112 S.Ct. at 2136-37. Even if a plaintiff meets the minimal constitutional requirements for standing, there are prudential limits on a court’s exercise of jurisdiction. These prudential limits are judicially imposed and “are ‘founded in concern about the proper — and properly limited — role of the courts in a democratic society.’” Bennett v. Spear, — U.S. —, —, 117 S.Ct. 1154, 1161, 137 L.Ed.2d 281 (1997) (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975)). Two prudential limits are relevant to this case. First, only in exceptional eases may a party have standing to assert the rights of another. Warth, 422 U.S. at 499, 95 S.Ct. at 2205. This “third-party standing” rule thus “normally bars litigants from asserting the rights or legal interests of others in order to obtain relief from injury to themselves.” Id. at 509, 95 S.Ct. at 2210. In addition, plaintiffs alleging a violation of a constitutional or statutory right must demonstrate that they are within the “zone of interests” of the particular provision invoked. Bennett, — U.S. at —, 117 S.Ct. at 1161. To satisfy this prudential requirement," }, { "docid": "5772668", "title": "", "text": "properly allege standing is a ground for dismissal under Rule 12(b)(6). Western Mining Council v. Watt, 643 F.2d 618 (9th Cir.1981). B. Standing Standing is a threshold requirement in every federal case. Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). As an aspect of justiciability, the standing question is whether the plaintiff has alleged such a personal stake in the controversy as to warrant his invocation of federal court jurisdiction. Id. The plaintiff must have suffered “some threatened or actual injury resulting from the putatively illegal action.” Id. The standing inquiry involves both constitutional and prudential limitations. McMichael v. County of Napa, 709 F.2d 1268, 1269 (9th Cir.1983). The “three separate but interrelated components” of Article III standing are: (1) a distinct and palpable injury to the plaintiff; (2) a fairly traceable causal connection between the injury and challenged conduct; and (3) a substantial likelihood that the relief requested will prevent or redress the injury. Id. These constitutional limitations may be summarized as the requirements of injury, causation and redressability. The three prudential limitations are as follows: (1) the plaintiff must assert his own rights and not rest his claim to relief on the legal rights or interests of third parties; (2) the plaintiffs injury, although cognizable under Article III, must not be “shared in equal measure by all or a large class of citizens” so as to represent only a “generalized grievance”; and (3) the plaintiffs interest must arguably fall within the zone of interests intended to be protected by the statute at issue. Id. Standing is a jurisdictional inquiry and it is axiomatic that states “have no power directly to enlarge or contract federal jurisdiction.” Fiedler v. Clark, 714 F.2d 77, 79-80 (9th Cir.1983) (no standing to sue in federal court where plaintiff sued as private attorney general under Hawaii statute which purported to confer standing to enforce federal statutes which themselves did not provide private right of action). Moreover, a state legislature may not waive by statute the prudential or constitutional limitations on standing in federal court and, by way" }, { "docid": "8970647", "title": "", "text": "judgment. On July 15, 1986, the district court dismissed Hong Kong’s complaint for lack of standing. The court found that Hong Kong lacked standing under article III of the United States Constitution and also lacked prudential standing, having failed to demonstrate that it is “a suitable champion of the nutritional needs of the Southeast Asians it seeks to represent.” Hong Kong filed a timely appeal. ISSUE PRESENTED Whether Hong Kong lacks standing to assert the claims of its WIC program customers. STANDARD OF REVIEW The question whether a party lacks standing is a legal issue subject to de novo review. Bruce v. United States, 759 F.2d 755, 758 (9th Cir.1985). In addition, in ruling on a Fed.R.Civ.P. 12(b)(6) motion to dismiss for want of standing, “both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.” Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975); accord Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.), cert. denied, 454 U.S. 1031, 102 S.Ct. 567, 70 L.Ed.2d 474 (1981). We cannot, however, interpret the complaint “so liberally as to extend our jurisdiction beyond its constitutional limits.\" Western Mining Council, 643 F.2d at 624. DISCUSSION The determination whether a plaintiff has standing involves both constitutional and prudential limitations. McMichael v. County of Napa, 709 F.2d 1268, 1269 (9th Cir.1983). The constitutional limitations of article III contain three components: (1) a threatened or actual distinct and palpable injury to the plaintiff; (2) a fairly traceable causal connection between the alleged injury and the defendant’s challenged conduct; and (3) a substantial likelihood that the requested relief will redress or prevent the injury. Id. at 1270. The prudential limitations require the plaintiff to (1) assert his own rights, rather than rely on the rights or interests of third parties; (2) allege an injury that is more than a generalized grievance; and (3) allege an interest that is arguably within the zone of interests protected or regulated by the statute or constitutional guarantee" } ]

[ { "docid": "8469703", "title": "", "text": "aware of existing limitations on jurisdiction and venue at the time the Railway Labor Act was passed. It must be presumed to 'have intended, to .require conformity to this general venue statute as it had been applied and interpreted, otherwise specific venue and jurisdictional provisions would have been incorporated in the Act. Robertson v. Railroad Labor Board, 268 U.S..619, 45 S.Ct. 621, 69 L.Ed. 1119. There cannot be dispute but that this unincorporated association must be considered a jural person or entity as if it were an individual or corporation. That question is definitely settled in Sperry Products, Inc., v. Association of American Railroads et al., 2 Cir., 132 F.2d 408, 145 A.L.R. 694, wherein it is stated that an association such as this was present wherever any substantial part of its activities were continually carried on. Since Cleveland, Ohio, is the place of -inhabitancy of the Brotherhood, Section 51 must fix the place where it as a jural entity must be sued. The identical question was passed on by the Court of Appeals for the District of Columbia in an opinion handed down on October 26, 1948, in the case of Brotherhood of Locomotive Firemen and Enginemen (the same association here involved) v. Graham et al., - F.2d -. There the court held that the venue of an action against the Brotherhood 1-ay in Cleveland and not in the District of ■ Columbia and under the provision of the Judicial Code, 28 U.S.C.A. § 1406(a), transferred the case to the Northern District of Ohio. I must conclude that insofar as the Brotherhood is concerned in this respect venue does not lie in this district in this phase-of the case. This court must retain jurisdiction, however, on the ground that this is^ a class action under Rule 23(a). Without extended discussion suffice it to say the allegations contained in the complaint and exhibits in the record, which must be accepted as true on this motion, show that all colored firemen on the railroads manned by members of the defendant lodges and all white members of the craft are directly affected" } ]

[ { "docid": "8469709", "title": "", "text": "a suit by or against the association but not by a suit by or against representatives or where, as here, it is not possible for the plaintiff to serve process on the association within a convenient jurisdiction. See Moore’s Federal Practice vol. 2 p. 2236; Philadelphia Local 192 etc., v. American Federation of Teachers, D. C., 44 F.Supp. 345. The manifest purpose of the provision of rule 17(b) relating to suits against partnerships and unincorporated associations is to add to, not to detract from, the existing facilities for obtaining jurisdiction over them. The language of rule 17(b) relating to suits against partnerships and unincorporated associations is permissive. So also is the language of rule 23(a). Together they provide alternative methods of bringing unincorporated associations into court.” Counsel relies upon Brotherhood of Locomotive Firemen and Enginemen v. Graham, supra, I do not have the record in that case before me, but judging from the opinion there is a distinction. It recites that from evidence before the court it appeared that certain of the defendants were not employees of the carrier and could not be affected by the agreement. It further recited that the local lodges and the named individuals did “not appear” to 'have coextensive with the Brotherhood, an interest in the outcome of the case. It would be ignoring realities to say that such is the case here. All employees of the Brotherhood and all members of the local lodges and all persons whom the plaintiff represents have co-extensive interests with each other in any agreement or amendment to an agreement between the craft and defendant railroad company. This is a class action properly brought and within contemplation of Rule 23(a), F.R.C.P., and on authority of Tunstall v. Brotherhood of Locomotive Firemen and Enginemen, supra. The final question for determination on this submission is the plaintiff’s motion for an injunction pendente lite. The requested injunctive relief as to the railroad should be denied. The railroad is a public service corporation under strict obligation to run trains and serve the public. It was required by law to recognize the right of" }, { "docid": "8102106", "title": "", "text": "clause reads on the present situation. Under the general words of the complaint above quoted plaintiff would be free to prove a certification of the dispute to defendant Frick and a refusal by him to determine it. I can grant the motion only if the complaint is such that under it no claim upon which relief can be granted can possibly be proved. Dioguardi v. Durning, 2 Cir., 139 F.2d 774. A refusal of the Commissioner to enter tain a certification of such a dispute as this would constitute a breach of an es-\\ sential elemént of the contract. Its obvious purpose is to pláce' in the hands of one man power to make decisions in the baseball world more promptly than they can be reached outside of it, and in this one case the party certifying the dispute is given an absolute right to a decision. The Commissioner, by refusing to act in order to help the certifying party’s opponent, might well be held to have so identified himself with the alleged breach of contract as to share liability for it. Since a claim against defendant Frick might be proved under the complaint I must deny his motion for dismissal. . Except in the cases of corporations which had consented to suit as a condition to leave to do business within the state, Neirbo Co. v. Bethlehem Corp., 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167. . McNutt v. United Gas Coke & Chemical Workers, D.C.W.D.Ark., Fort Smith Div., 108 F.Supp. 871, 875; Griffin v. Illinois Cent. R. Co., D.C.N.D.Ill.E.D., 88 F.Supp. 552, 555; Salvant v. Louisville & N. R. Co., D.C.W.D.Ky.L.D., 83 F.Supp. 391, 396. . The Graham case was reversed in the Supreme Court sub. nom. Graham v. Brotherhood of Firemen, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22. The Court of Appeals had held not only that the federal venue statute did not permit suit against the Brotherhood in the District of Columbia, but also that the District Court had been wrong in treating a District of Columbia venue statute as applicable. The Supreme" }, { "docid": "18338898", "title": "", "text": "Vand.L.Rev. 377 (1963). . The Court was careful to point out that United Steelworkers of America v. Bouligny, supra, dealt with diversity jurisdiction, not capacity or venue, 387 U.S. at 559-560, 87 S.Ct. at 1748, 18 L.Ed.2d at 958. . For cases restricting an unincorporated association’s residence to its principal place of bnsiness see, e. g., Brotherhood of Locomotive Firemen and Enginemen v. Graham, 1948, 84 U.S.App.D.C. 67, 175 F.2d 802, rev’d on, other grounds, 1949, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22; McNutt v. United Gas, Coke & Chem. Workers of America, W.D.Ark., 1952, 108 F.Supp. 871; Salvant v. Louisville & N. R. Co., W.D.Ky., 1949, 83 F.Supp. 391. Among cases bolding that an unincorporated association may be sued where it is doing business are: Rutland Ry. Corp. v. Brotherhood of Locomotive Eng., 2 Cir., 1962, 307 F.2d 21, cert. denied, 1963, 372 U.S. 954, 83 S.Ct. 949, 9 L.Ed.2d 978; Portsmouth Baseball Corp. v. Frick, S.D.N.Y., 1955, 132 F.Supp. 922; American Football League v. National Football League, D.Md., 1961, 27 F.R.D. 264. . The Jones Act has been given a broad and liberal construction to effectuate the beneficial purposes for which it was designed. Cf. Offshore Co. v. Robison, 5 Cir., 1959, 266 F.2d 769, 1959 A.M.C. 2049. . In footnote 3 of Suarez the Court quoted with approval from Transmirra Products Corp. v. Fourco Glass Co., 2 Cir., 1956, 233 F.2d 885, 887, rev’d on other grounds, 353 U.S. 222, 77 S.Ct. 787, 1 L.Ed.2d 786: 3. As the Court of Appeals stated in Transmirra Prods. Corp. v. Fourco Glass Co., 2 Cir., 233 F.2d 885, 887, “The rationale of this sharp break with ancient formulae is quite obviously a response to a general conviction that it was ‘intolerable if the traditional concepts of “residence” and “presence” kept a corporation from being sued wherever it was creating liabilities.’ ” Although this Court reversed in Fourco, supra, for reasons discussed later * * *, the validity of this general observation was in no way questioned. 384 U.S. at 204 n. 3, 86 S.Ct. at 1395 n." }, { "docid": "23321199", "title": "", "text": "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.” The cases are plainly in conflict as to whether the “residence” of an unincorporated association for venue purposes under 1391(b) is only in the district where it has its principal place of business or whether, like a corporation under Section 1391(c) such residence is in any judicial district where it is doing business. Brotherhood of Locomotive Firemen & Enginemen v. Graham, D.C.Cir. 84 U.S.App.D.C. 67, 175 F.2d 802, reversed on other grounds sub nom Graham v. Brotherhood of Locomotive Firemen & Enginemen, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22; Cherico v. Brotherhood of Railway Trainmen, D.C.S.D.N.Y., 167 F.Supp. 635; McNutt v. United Gas, Coke & Chemical Workers of America, C.I.O., D.C.W.D.Ark., 108 F.Supp. 871; Griffin v. Illinois Central R. Co., D.C.N.D.Ill., 88 F.Supp. 552; and Salvant v. Louisville & Nashville R. Co., D.C.N.D.Ky., 83 F.Supp. 391, hold that such residence for purposes of venue is confined to that of the association’s principal place of business, which in this case would be Chicago. Portsmouth Baseball Corp. v. Frick, D.C.S.D.N.Y., 132 F.Supp. 922, on the other hand, holds that, within the meaning of Section 1391, an unincorporated association resides in any district in which it does business. Under the Portsmouth case the residence of an unincorporated association is to be determined under the rules applicable to corporations. Since 1391(c) provides that the “residence” of a corporation for venue purposes is in any district in which it is doing business, an unincorporated association similarly is to be considered a resident of any district in which it is doing business for such purposes. The reasoning of the Portsmouth case is in large measure based on Sperry Products, Inc. v. Association of American Railroads, 2 Cir., 132 F.2d 408, 145 A.L.R. 694, certiorari denied 319 U.S. 744, 63 S.Ct. 1031, 87 L.Ed. 1700. It states: “Sperry Products v. Association of American R., 2 Cir., 132" }, { "docid": "23142880", "title": "", "text": "applying 28 U. S. C. § 1404 (a) to pending actions, “No one has a vested right in any given mode of procedure.” Ex parte Collett, 337 U. S¡, at 71. And in any event, if the decision below were affirmed, the petitioner could reinstitute the same action in the same District Court and seek the benefits of the current version of § 1391, absent the barrier of any applicable statute of limitations. We do not, of course, intimate any views as to whether this claim “arose” in the District of Colorado. That would be an issue for the District Court should it now be determined, in light of this opinion, that respondent was not doing business in Colorado when this suit was instituted. Reversed and remanded. The Court of Appeals also reversed the damage. award against respondent Carroll, concluding that Carroll was not responsible for the strike in question. We do not disturb this factual determination of the Court of Appeals. Carroll’s residence is admittedly within the District of Colorado. Other lower court cases are divided on the question whether an unincorporated association can be sued at a place other than its principal place of business. Cases restricting venue to the association’s principal place of business include Brotherhood of Locomotive Firemen v. Graham, 84 U. S. App. D. C. 67, 69, n. 2, 175 F. 2d 802, 804, n. 2, rev’d on other grounds, 338 U. S. 232; McNutt v. United Gas, Coke & Chem. Workers, 108 F. Supp. 871, 875; Salvant v. Louisville & N. R. Co., 83 F. Supp. 391, 396; Westinghouse Elec. Corp. v. United Elec. Radio & Mach. Workers, 92 F. Supp. 841, aff’d without discussion, 194 F. 2d 770; Chenco v. Brotherhood of R. R. Trainmen, 167 F. Supp. 635, 637-638; cf. Hadden v. Small, 145 F. Supp. 387 (partnership). Cases holding that unincorporated associations may be sued where they do business: Portsmouth Baseball Corp. v. Frick, 132 F. Supp. 922; Eastern Motor Express v. Espen-shade, 138 F. Supp. 426, 432; American Airlines, Inc. v. Air Line Pilots Assn., 169 F. Supp. 777, 781-783;" }, { "docid": "9895422", "title": "", "text": "or (2) the purpose of the suit is the enforcement of a substantive federal right. An unincorporated association may not be sued in its common name in Arkansas. Baskins v. United Mine Workers, 150 Ark. 398, 234 S.W. 464; District No. 21, United Mine Workers of America v. Bourland, 169 Ark. 796, 277 S.W. 546. Such being the law of Arkansas, the instant suit is maintainable under Rule 17(b) only if a substantive federal right is involved. It is here that the plaintiffs are confronted with a procedural dilemma. If no substantive federal right is involved, the action cannot be maintained against the association in. its common or society name. If such a federal right is involved, plaintiffs have selected the wrong forum in which to bring their action. 28 U.S.C.A. § 1391(b) provides: “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, 'except as otherwise provided by law.” According to the undisputed affidavit of Mr. Joe Joy, a Vice President of the defendant United, the principal place of business of United is in Washington D. C., and an unincorporated association is an “inhabitant,” insofar as venue is concerned, of the district where its principal place of business is located. Brotherhood of Locomotive Firemen and Enginemen v. Graham, 84 U.S. App.D.C. 67,175 F.2d 802, reversed on other grounds in Graham v. Brotherhood of Locomotive Firemen and Enginemen, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22; Salvant v. Louisville & N. R. Co., D.C.Ky., 83 F.Supp. 391; Griffin v. Illinois Cent. R. Co., D.C. N.D.Ill, 88 F.Supp. 552. It is true that the quoted section, 28 U.S.C.A. § 1391(b), supra, now has the word “reside” rather than the word “inhabitant,” but the words are synonymous and the change was made merely for clarity. See Revisor’s Note, 28 U.S.C.A. § 1391. Therefore, venue in this district would be proper only if it is “otherwise provided by law”, and no such law establishing proper venue in this district has been brought to the attention of the" }, { "docid": "23142893", "title": "", "text": "105, 80th Cong., 1st Sess., 15-18 (1947). Cases holding an unincorporated association may be sued only at its principal place of business: Brotherhood of Locomotive Firemen v. Graham, supra, at 69, n. 2, 175 F. 2d, at 804; McNutt v. United Gas, Coke & Chem. Workers, 108 F. Supp. 871, 875; Salvant v. Louisville & N. R. Co., 83 F. Supp. 391, 396; Westinghouse Elec. Corp. v. United Elec. Radio & Mach. Workers, 92 F. Supp. 841, 842, aff’d without discussion, 194 F. 2d 770; Cherico v. Brotherhood of R. R. Trainmen, 167 F. Supp. 635, 637-638; cf. Hadden v. Small, 145 F. Supp. 387 (partnership). Cases holding that an unincorporated association may be sued where it does business: Portsmouth Baseball Corp. v. Frick, 132 F. Supp. 922; Eastern Motor Express v. Espenshade, 138 F. Supp. 426, 432; American Airlines, Inc. v. Air Line Pilots Assn., 169 F. Supp. 777, 781-783; R & E Dental Supply Co. v. Ritter Co., 185 F. Supp. 812; cf. Joscar Co. v. Consolidated Sun Ray, Inc., 212 F. Supp. 634. Since I agree with the Court that the 1966 amendment of § 1391 (b) should apply to pending cases such as this one, I would not have filed this dissent had the Court remanded this case solely for a determination of the propriety of venue under the 1966 amendment." }, { "docid": "23142892", "title": "", "text": "S. App. D. C. 67, 175 F. 2d 802, rev’d on other grounds, 338 U. S. 232, and Griffin v. Illinois Cent. R. Co., 88 F. Supp. 552, 555, with Thermoid Co. v. United Rubber Workers, 70 F. Supp. 228, 233-234. Moore, Commentary on the U. S. Judicial Code 193 (1949). Now, however, for legislative policy reasons such as the protection from abuse contained in the transfer provision of 28 U. S. C. § 1404 (a) and the multi-state nature of unincorporated associations’ activities, Professor Moore believes the position taken in Rutland “desirable.” 1 Moore, Federal Practice ¶ 0.142 [5.-4], at 1508. See also Comment, 44 Calif. L. Rev. 130 (1956); Note, 39 St. John’s L. Rev. 353, 358-360 (1965); Note, 13 Okla. L. Rev. 206 (1960); 45 Geo. L. Rev. 132 (1956). But see Kaplan, Suits Against Unincorporated Associations Under the Federal Rules of Civil Procedure, 53 Mich. L. Rev. 945, 949-950 (1955); Comment, 8 Stan. L. Rev. 708 (1956). H. R. Rep. No. 245, 80th Cong., 1st Sess., 108-109 (1947); S. Rep. No. 105, 80th Cong., 1st Sess., 15-18 (1947). Cases holding an unincorporated association may be sued only at its principal place of business: Brotherhood of Locomotive Firemen v. Graham, supra, at 69, n. 2, 175 F. 2d, at 804; McNutt v. United Gas, Coke & Chem. Workers, 108 F. Supp. 871, 875; Salvant v. Louisville & N. R. Co., 83 F. Supp. 391, 396; Westinghouse Elec. Corp. v. United Elec. Radio & Mach. Workers, 92 F. Supp. 841, 842, aff’d without discussion, 194 F. 2d 770; Cherico v. Brotherhood of R. R. Trainmen, 167 F. Supp. 635, 637-638; cf. Hadden v. Small, 145 F. Supp. 387 (partnership). Cases holding that an unincorporated association may be sued where it does business: Portsmouth Baseball Corp. v. Frick, 132 F. Supp. 922; Eastern Motor Express v. Espenshade, 138 F. Supp. 426, 432; American Airlines, Inc. v. Air Line Pilots Assn., 169 F. Supp. 777, 781-783; R & E Dental Supply Co. v. Ritter Co., 185 F. Supp. 812; cf. Joscar Co. v. Consolidated Sun Ray, Inc., 212 F. Supp." }, { "docid": "23142881", "title": "", "text": "are divided on the question whether an unincorporated association can be sued at a place other than its principal place of business. Cases restricting venue to the association’s principal place of business include Brotherhood of Locomotive Firemen v. Graham, 84 U. S. App. D. C. 67, 69, n. 2, 175 F. 2d 802, 804, n. 2, rev’d on other grounds, 338 U. S. 232; McNutt v. United Gas, Coke & Chem. Workers, 108 F. Supp. 871, 875; Salvant v. Louisville & N. R. Co., 83 F. Supp. 391, 396; Westinghouse Elec. Corp. v. United Elec. Radio & Mach. Workers, 92 F. Supp. 841, aff’d without discussion, 194 F. 2d 770; Chenco v. Brotherhood of R. R. Trainmen, 167 F. Supp. 635, 637-638; cf. Hadden v. Small, 145 F. Supp. 387 (partnership). Cases holding that unincorporated associations may be sued where they do business: Portsmouth Baseball Corp. v. Frick, 132 F. Supp. 922; Eastern Motor Express v. Espen-shade, 138 F. Supp. 426, 432; American Airlines, Inc. v. Air Line Pilots Assn., 169 F. Supp. 777, 781-783; R & E Dental Supply Co. v. Ritter Co., 185 F. Supp. 812; cf. Joscar Co. v. Consolidated Sun Ray, Inc., 212 F. Supp. 634. Mr. Justice Black, with whom Mr. Justice Douglas, and Mr. Justice Fortas join, dissenting. This suit for damages caused by an illegal strike was brought by the Denver and Rio Grande Western Railroad against the Brotherhood of Railroad Trainmen and certain of its individual members in the United States District Court for Colorado where the Brotherhood’s local lodges went on strike. The Brotherhood, an unincorporated association with its headquarters and principal place of business in Cleveland, Ohio, filed a motion to dismiss on the ground of improper venue. The District Court denied this motion, and after a trial without a jury, gave the railroad a $37,988 judgment against the union. The Court of Appeals reversed. 367 F. 2d 137. It held that the applicable venue statute, 28 U. S. C. § 1391 (b), gave venue only to the district court for the district where the union’s principal place of business" }, { "docid": "8102095", "title": "", "text": "Court assimilated the position of the unincorporated association to that of the corporation. It said, 132 F.2d at page 411, that by “inhabitancy” the section demanded something more of a corporation than mere doing of business within the district because it contrasted it as an “inhabitant” with having “a regular and established place of business”. The Court thus held that a corporation was an “inhabitant”, within the meaning of the provision, only at the place where it had its principal place of business within its state of incorporation. Hence it held that an unincorporated association was an “inhabitant” only at the place where it had its principal place of business. It therefore concluded, 132 F.2d at pages 411-412, that “if a patentee chooses to sue an unincorporated association * * * he must do so either at its principal place of business, or at any of the regular and established places of its business where it may have infringed.” A few years later there came before the District of Columbia Court of Appeals the question of the treatment of an unincorporated association under the later superseded form of the more restricted general venue provision. In that case, Brotherhood of Locomotive Firemen and Enginemen v. Graham, 84 U.S.App.D.C. 67, 175 F.2d 802, Graham had sued the Brotherhood, an unincorporated association, in the District of Columbia district, on a civil rights claim under the constitution. The general venue provision considered was section 51 of the Judicial Code, 28 U.S.C. 1946 Ed. § 112(a), above referred to, which provided: “no civil suit shall be brought in any district court against any person * * * in any other district than that whereof he is an inhabitant”. The District of Columbia Court of Appeals quoted Judge Learned Hand’s opinion in the Sperry Products case, followed him in assimilating the position of the unincorporated association to that of the corporation and said that, under section 51 just as under section 48, an unincorporated association could be an “inhabitant” only where it had its principal place of business. If one were to stop there, it would" }, { "docid": "23321198", "title": "", "text": "further details it is apparent that the Union is present and doing business in this district and its representatives are acting for employees here. The Union raises no real issue as to this. The Union contends, however, that, since it is an unincorporated association, venue may properly be laid against it under 28 U.S.C. § 1391 only in the judicial district where it “resides”, that the place of such residence is the place where its principal office and place of business is, which is concededly in Chicago, Illinois, and that therefore venue may be properly laid against it only in the District of Illinois and not here. Jurisdiction here is founded upon 28 U.S.C. §§ 1331, 1337 and 2201, basically because of federal questions affecting commerce arising under the Railway Labor Act. 28 U.S.C. § 1391, dealing with venue generally, provides: “(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, except as otherwise provided by law. “(c) 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.” The cases are plainly in conflict as to whether the “residence” of an unincorporated association for venue purposes under 1391(b) is only in the district where it has its principal place of business or whether, like a corporation under Section 1391(c) such residence is in any judicial district where it is doing business. Brotherhood of Locomotive Firemen & Enginemen v. Graham, D.C.Cir. 84 U.S.App.D.C. 67, 175 F.2d 802, reversed on other grounds sub nom Graham v. Brotherhood of Locomotive Firemen & Enginemen, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22; Cherico v. Brotherhood of Railway Trainmen, D.C.S.D.N.Y., 167 F.Supp. 635; McNutt v. United Gas, Coke & Chemical Workers of America, C.I.O., D.C.W.D.Ark., 108 F.Supp. 871; Griffin v. Illinois Central R. Co., D.C.N.D.Ill., 88 F.Supp. 552; and Salvant v. Louisville & Nashville R. Co., D.C.N.D.Ky., 83 F.Supp." }, { "docid": "23030361", "title": "", "text": "their treatment to that accorded corporations. Therefore, Judge Hand concluded that an unincorporated association should be considered “present” wherever it was continuously carrying on a substantial part of its activities, since this was the standard for the “presence” of corporations. However, he hastened to add that being “present” in a district was not tantamount to being an “inhabitant” of that district. Again assimilating the situation of the unincorporated entity which has no place of incorporation to that of the incorporated entity, Judge Hand an-nouneed that the unincorporated entity was an “inhabitant” of the district of its principal place of business. Although Sperry Prods., Inc. involved’ the venue provision for patent infringement actions, courts have applied Judge Hand’s reasoning in that case to the-determination of questions that have arisen involving the general venue statute. Until the revision of the Judicial Code in 1948 there was little difficulty in so doing because the general venue statute, 28 U.S.C. § 112 (1940), provided only that “no civil suit shall be brought in any district court against any person * * * in any other district than that whereof he is an inhabitant * * Thus Judge Hand’s discussion of where an unincorporated association was an inhabitant was applicable with equal force under the general venue provision as it then existed. See Brotherhood of Locomotive Firemen, etc. v. Graham, 84 U.S.App.D.C. 67, 175 F.2d 802 (1948), rev’d on other grounds, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22 (1949). Cf. Darby v. Philadelphia Transp. Co., 73 F.Supp. 522 (E.D.Pa.1947). But see Thermoid Co. v. United Rubber Workers, 70 F.Supp. 228 (D.N.J.1947). But in 1948 the general venue statute was redrafted as 28 U.S.C. § 1391; and a subsection (c) was added. This subsection stated: “(c) 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.” Under the venue provision drafted in 1948 courts were faced with the question whether they should follow Judge Hand" }, { "docid": "1698954", "title": "", "text": "considered involving the venue of the action against the Brotherhood when sued in its common name. It was determined in Brotherhood of Locomotive Firemen and Enginemen v. Graham, D.C.Cir., 1948, 175 F.2d 802, reversed by the Supreme Court of the United States on interpretation of a local District of Columbia statute 1949, 338 U.S. 232, 70 S.Ct. 14, that an unincorporated association is an inhabitant only of the district in which is located its principal office. The venue statute applicable to federal courts provides that suit shall be brought against any person only in the district whereof he is an inhabitant. The affidavit of J. W. Mooney being uncontroverted, it is established that the Brotherhood of Locomotive Engineers is an inhabitant of Cleveland, Ohio cannot be sued in this district under its common name. Plaintiffs request that in the event service of process and venue are not proper in the suit against the Brotherhood in its common name, this court follow the decision of the Court of Appeals of the Fourth Circuit in Tunstall v. Brotherhood of Locomotive Firemen and Enginemen, 148 F.2d 403, 406 and treat the action as a class suit against these defendants. It is to be noted the complaint herein proceeds on two theories (1) a suit to enjoin the carrier from enforcing an alleged void award and (2) a suit for damages against the Brotherhood, Lodge No. 10, Mooney and Dahling for breach of statutory duty to represent plaintiffs in collective bargaining agreements. Plaintiffs state the Illinois Central does not run to Cleveland, Ohio and that consequently no service of process can be had on the carrier in that venue or district. The complaint alleges that Lodge No. 10, J. W. Mooney and W. A, Dahling are sued as representative of the members of the Brotherhood, the subordinate lodges of the Brotherhood, and the Brotherhood itself. It is clear, therefore, that these defendants were joined as members of the class constituting the Brotherhood. The court is of the opinion this suit should be considered as a class suit. The court is further of the opinion" }, { "docid": "23030363", "title": "", "text": "and hold that an unincorporated association resides only at its principal place of business, or whether the process of assimilation which Judge Hand advocated should be extended by assimilating the treatment of unincorporated associations for venue purposes with the newly expanded concept of corporate residence. The cases are divided on this issue. Some courts have held that for determining venue an unincorporated association resides only at its principal place of business. Brotherhood of Locomotive Firemen, etc. v. Graham, supra; McNutt v. United Gas Workers, 108 F.Supp. 871, 875 (W.D.Ark.1952); Griffin v. Illinois Cent. R. R., 88 F.Supp. 552, 555 (N.D.Ill.1949); Salvant v. Louisville & N. R. R., 83 F.Supp. 391, 396 (W.D.Ky.1949); Cherico v. Brotherhood of R. R. Trainmen, 167 F.Supp. 635 (S.D.N.Y.1958). Cf. Hadden v. Small, 145 F.Supp. 387 (N.D.Ohio 1951). Other courts have held that an unincorporated association may be sued in any district in which it is doing business. Portsmouth Baseball Corp. v. Frick, 132 F.Supp. 922 (S.D.N.Y.1955); American Airlines, Inc. v. Air Line Pilots Ass’n, 169 F.Supp. 777 (S.D.N.Y.1958); Eastern Motor Express, Inc. v. Espenshade, 138 F.Supp. 426 (E.D.Pa.1956). And the Supreme Court has not yet spoken on the matter. Venue in the federal courts is not a jurisdictional concept. See 28 U.S.C. § 1406(b) (1958); H.R.Report 308, 80th Cong., 1st Sess. A154 (1947) (Reviser’s Notes). We should not think about it in the metaphysical terms which have often been associated with considerations of jurisdiction. Venue is a concept of convenience. See Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 167-168, 60 S.Ct. 153, 84 L.Ed. 167 (1939); Cohen v. Commodity Credit Corp., 172 F.Supp. 803 (W.D.Ark.1959); Jacobson v. Indianapolis Power & Light Co., 163 F.Supp. 218 (N.D.Ind.1958); The North River, 57 F.Supp. 808 (E.D.N.Y.1944); Vogel v. Crown Cork & Seal Co., 36 F.Supp. 74 (D.Md.1940). It should be treated in practical terms. See Sperry Prods., Inc. v. Ass’n of Am. R. Rs., supra; American Airlines v. Air Line Pilots Ass’n, supra. Congress has stated in § 1391(c) that the residence of a corporation for venue purposes is not only in the state wherein it" }, { "docid": "23142891", "title": "", "text": "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.” 36 Stat. 1100, §48, 28 U. S. C. § 109 (1940 ed.), provided that suits for patent infringement must be brought “in the district of which the defendant is an inhabitant, or in any district in which the defendant . . . shall have committed acts of infringement and have a regular and established place of business.” None of the parties here have suggested, that an unincorporated association’s residence for venue purposes depends on the residence of each individual member, and I agree with the Court’s holding that an unincorporated association like a union is a single entity with a residence. The only problem here is to locate that residence. After Sperry the lower courts divided on whether its holding should be extended to the pre-1948 general venue provision (see n. 3, supra). Compare Brotherhood of Locomotive Firemen v. Graham, 84 U. S. App. D. C. 67, 175 F. 2d 802, rev’d on other grounds, 338 U. S. 232, and Griffin v. Illinois Cent. R. Co., 88 F. Supp. 552, 555, with Thermoid Co. v. United Rubber Workers, 70 F. Supp. 228, 233-234. Moore, Commentary on the U. S. Judicial Code 193 (1949). Now, however, for legislative policy reasons such as the protection from abuse contained in the transfer provision of 28 U. S. C. § 1404 (a) and the multi-state nature of unincorporated associations’ activities, Professor Moore believes the position taken in Rutland “desirable.” 1 Moore, Federal Practice ¶ 0.142 [5.-4], at 1508. See also Comment, 44 Calif. L. Rev. 130 (1956); Note, 39 St. John’s L. Rev. 353, 358-360 (1965); Note, 13 Okla. L. Rev. 206 (1960); 45 Geo. L. Rev. 132 (1956). But see Kaplan, Suits Against Unincorporated Associations Under the Federal Rules of Civil Procedure, 53 Mich. L. Rev. 945, 949-950 (1955); Comment, 8 Stan. L. Rev. 708 (1956). H. R. Rep. No. 245, 80th Cong., 1st Sess., 108-109 (1947); S. Rep. No." }, { "docid": "23030362", "title": "", "text": "* * * in any other district than that whereof he is an inhabitant * * Thus Judge Hand’s discussion of where an unincorporated association was an inhabitant was applicable with equal force under the general venue provision as it then existed. See Brotherhood of Locomotive Firemen, etc. v. Graham, 84 U.S.App.D.C. 67, 175 F.2d 802 (1948), rev’d on other grounds, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22 (1949). Cf. Darby v. Philadelphia Transp. Co., 73 F.Supp. 522 (E.D.Pa.1947). But see Thermoid Co. v. United Rubber Workers, 70 F.Supp. 228 (D.N.J.1947). But in 1948 the general venue statute was redrafted as 28 U.S.C. § 1391; and a subsection (c) was added. This subsection stated: “(c) 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.” Under the venue provision drafted in 1948 courts were faced with the question whether they should follow Judge Hand and hold that an unincorporated association resides only at its principal place of business, or whether the process of assimilation which Judge Hand advocated should be extended by assimilating the treatment of unincorporated associations for venue purposes with the newly expanded concept of corporate residence. The cases are divided on this issue. Some courts have held that for determining venue an unincorporated association resides only at its principal place of business. Brotherhood of Locomotive Firemen, etc. v. Graham, supra; McNutt v. United Gas Workers, 108 F.Supp. 871, 875 (W.D.Ark.1952); Griffin v. Illinois Cent. R. R., 88 F.Supp. 552, 555 (N.D.Ill.1949); Salvant v. Louisville & N. R. R., 83 F.Supp. 391, 396 (W.D.Ky.1949); Cherico v. Brotherhood of R. R. Trainmen, 167 F.Supp. 635 (S.D.N.Y.1958). Cf. Hadden v. Small, 145 F.Supp. 387 (N.D.Ohio 1951). Other courts have held that an unincorporated association may be sued in any district in which it is doing business. Portsmouth Baseball Corp. v. Frick, 132 F.Supp. 922 (S.D.N.Y.1955); American Airlines, Inc. v. Air Line Pilots Ass’n, 169 F.Supp. 777 (S.D.N.Y.1958); Eastern Motor" }, { "docid": "18338897", "title": "", "text": "association, which has no such capacity by the law of such state, may sue or be sued in its common name for the purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the United States, and (2) that the capacity of a receiver appointed by a court of the United States to sue or be sued in a court of the United States is governed by Title 28, U.S.C., §§ 754 and 959(a).” F.R.Civ.P. 17(b). . The Court affirmed the decision of this Court in Pure Oil Co. v. Suarez, 5 Cir., 1965, 346 F.2d 890, 1965 A.M.C. 2138. . See Professor Bromberg’s Comments to the Texas Uniform Partnership Act, Vernon’s Ann.Tex.Rev.Civ.Stat. Art. 6132b: “The Uniform Partnership Act leans heavily toward the entity idea, which accords with business usage. * * * The only significant aggregate feature of the Act is the joint and several liability of partners (§ 15).” See also Jensen, Is a Partnership under the Uniform Partnership Act an Aggregate or an Entity?, 16 Vand.L.Rev. 377 (1963). . The Court was careful to point out that United Steelworkers of America v. Bouligny, supra, dealt with diversity jurisdiction, not capacity or venue, 387 U.S. at 559-560, 87 S.Ct. at 1748, 18 L.Ed.2d at 958. . For cases restricting an unincorporated association’s residence to its principal place of bnsiness see, e. g., Brotherhood of Locomotive Firemen and Enginemen v. Graham, 1948, 84 U.S.App.D.C. 67, 175 F.2d 802, rev’d on, other grounds, 1949, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22; McNutt v. United Gas, Coke & Chem. Workers of America, W.D.Ark., 1952, 108 F.Supp. 871; Salvant v. Louisville & N. R. Co., W.D.Ky., 1949, 83 F.Supp. 391. Among cases bolding that an unincorporated association may be sued where it is doing business are: Rutland Ry. Corp. v. Brotherhood of Locomotive Eng., 2 Cir., 1962, 307 F.2d 21, cert. denied, 1963, 372 U.S. 954, 83 S.Ct. 949, 9 L.Ed.2d 978; Portsmouth Baseball Corp. v. Frick, S.D.N.Y., 1955, 132 F.Supp. 922; American Football League v. National Football League, D.Md., 1961, 27 F.R.D." }, { "docid": "8102096", "title": "", "text": "of the treatment of an unincorporated association under the later superseded form of the more restricted general venue provision. In that case, Brotherhood of Locomotive Firemen and Enginemen v. Graham, 84 U.S.App.D.C. 67, 175 F.2d 802, Graham had sued the Brotherhood, an unincorporated association, in the District of Columbia district, on a civil rights claim under the constitution. The general venue provision considered was section 51 of the Judicial Code, 28 U.S.C. 1946 Ed. § 112(a), above referred to, which provided: “no civil suit shall be brought in any district court against any person * * * in any other district than that whereof he is an inhabitant”. The District of Columbia Court of Appeals quoted Judge Learned Hand’s opinion in the Sperry Products case, followed him in assimilating the position of the unincorporated association to that of the corporation and said that, under section 51 just as under section 48, an unincorporated association could be an “inhabitant” only where it had its principal place of business. If one were to stop there, it would seem clear that the Graham case had no bearing on the application to unincorporated associations of the statute involved in the instant ease, 28 U.S.C. § 1391, which permits a suit to be brought where the defendant resides and says that any judicial district in which a corporation is incorporated “or is doing business” shall be regarded as its residence. Nevertheless the defendant Leagues cite the case for the proposition that, except in special cases like that of patent infringement under old section 48, an unincorporated association can be sued only in the judicial district where its principal place of business is located. It is of course true that that was the effect of the case as long as section 51 continued to say that no suit should be brought against a defendant “in any other district than that whereof he is an inhabitant”, but that provision is gone and section 1391 of tit. 28 U.S.C. has taken its place. Some foundation is given, however, for the Leagues’ argument by a footnote in the Graham" }, { "docid": "8102107", "title": "", "text": "contract as to share liability for it. Since a claim against defendant Frick might be proved under the complaint I must deny his motion for dismissal. . Except in the cases of corporations which had consented to suit as a condition to leave to do business within the state, Neirbo Co. v. Bethlehem Corp., 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167. . McNutt v. United Gas Coke & Chemical Workers, D.C.W.D.Ark., Fort Smith Div., 108 F.Supp. 871, 875; Griffin v. Illinois Cent. R. Co., D.C.N.D.Ill.E.D., 88 F.Supp. 552, 555; Salvant v. Louisville & N. R. Co., D.C.W.D.Ky.L.D., 83 F.Supp. 391, 396. . The Graham case was reversed in the Supreme Court sub. nom. Graham v. Brotherhood of Firemen, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22. The Court of Appeals had held not only that the federal venue statute did not permit suit against the Brotherhood in the District of Columbia, but also that the District Court had been wrong in treating a District of Columbia venue statute as applicable. The Supreme Court held that the District of Columbia statute was applicable and that the District Court had properly held that the Brotherhood, which had a legislative representative in Washington, was “found” in the District within the meaning of that statute. The Supreme Court explained the decision of the Court of Appeals on the question of the federal venue statute by saying that the Court of Appeals found as a matter of fact that the Brotherhood was neither an “inhabitant” within the old statute nor a “resident” within the new one. Justice Jackson’s words 338 U.S. at pages 235-236, 70 S.Ct. at page 16 are as follows : “This cause of action is founded on federal law, and the venue provisions generally applicable to federal courts at the time this action was commenced required such actions to be brought in the district whereof defendant ‘is an inhabitant.’ 28 U.S.C.A. § 112. Effective September 1, 1948, this provision was modified to require that such actions be brought ‘only in the judicial district whore all defendants reside, except as" }, { "docid": "9895423", "title": "", "text": "Vice President of the defendant United, the principal place of business of United is in Washington D. C., and an unincorporated association is an “inhabitant,” insofar as venue is concerned, of the district where its principal place of business is located. Brotherhood of Locomotive Firemen and Enginemen v. Graham, 84 U.S. App.D.C. 67,175 F.2d 802, reversed on other grounds in Graham v. Brotherhood of Locomotive Firemen and Enginemen, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22; Salvant v. Louisville & N. R. Co., D.C.Ky., 83 F.Supp. 391; Griffin v. Illinois Cent. R. Co., D.C. N.D.Ill, 88 F.Supp. 552. It is true that the quoted section, 28 U.S.C.A. § 1391(b), supra, now has the word “reside” rather than the word “inhabitant,” but the words are synonymous and the change was made merely for clarity. See Revisor’s Note, 28 U.S.C.A. § 1391. Therefore, venue in this district would be proper only if it is “otherwise provided by law”, and no such law establishing proper venue in this district has been brought to the attention of the Court. A further problem as to venue is presented by 28 U.S.C.A. § 1406(a) which 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 a cáse to any district or division in which it could have been brought.” Assuming the existence of a federal right, the Court, but for the fact that Sisco, a resident of Arkansas, is a party defendant, might transfer the case to the District of Columbia. However, since Sisco is a defendant and a resident of Arkansas, the District of Columbia is not a “district or division in which it [the suit] could have been brought” because said district is not one in which all the defendants reside. Aside from the venue problems, plaintiffs are faced with other difficulties. 8 U.S.C.A. § 47, upon which plaintiffs state in their brief that they rely, does not create such a substantive federal right under the allegátions of" } ]

[ { "docid": "6888736", "title": "", "text": "here. The remedy under Civil Rule 37(a)(5) of awarding a party its reasonable expenses incurred in bringing a motion to compel before a discovery order is entered was simply not available here; the bankruptcy court abused its discretion when it imposed the sanction against Stipp for CML’s attorney’s fees. VI. CONCLUSION For the foregoing reasons, we REVERSE the portion of the Order awarding CML $10,000 for its attorney’s fees. . Unless specified otherwise, all chapter, code and rule references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and the Federal Rules of Bankruptcy Procedure, Rules 1001-9037. The Federal Rules of Civil Procedure are referred to as “Civil Rules.’’ . The order on appeal actually did three things. It denied Stipp's motion for protective order, granted CML’s countermotion to compel, and sanctioned Stipp $10,000 for his noncompliance with CML's subpoenas. Pursuant to an order entered on September 19, 2013, the only issue before this Panel is whether the bankruptcy court abused its discretion in sanctioning Stipp for noncompliance with the subpoenas. . All references to Civil Rule 45 are to the version prior to the amendments in December 2013. . Civil Rule 37(a)(5) provides: If the motion is granted — or if the disclosure or requested discovery is provided after the motion was filed — the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred in making the motion, including attorney's fees. But the court must not order this payment if: (i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust. . References to Stipp include both Stipp and MSJM. . Arguably, the remedy of attorney's fees under Civil Rule 37(a)(5) may apply to a nonparty’s failure to attend a deposition that requires the filing of a motion to compel. However, we disagree" } ]

[ { "docid": "18308144", "title": "", "text": "that he had heard enough to conclude that Appellants had no substantive reason to refuse to cooperate with the Trustee’s attempts to gain access to the property. Under the Federal Rules of Evidence, which regulate bankruptcy proceedings pursuant to Bankruptcy Rule 9017, Judge Votolato is empowered to exercise precisely this type of control over the proceedings. Fed. Rules of Evidence R. 611(a); Kelley v. Airborne Freight Corp., 140 F.3d 335, 347 (1st Cir.1998). This Court can find no clear error in the Bankruptcy Court’s methods, findings or conclusions on this issue. Fees On June 29, 2007, the Bankruptcy Court ordered Appellants to pay the legal costs and fees incurred by the Trustee in filing and prosecuting his Motion to Compel Defendants to Arrange for Full Access to the Property, upon finding that Appellants had “intentionally interfered with and hindered the Trustee in his efforts to adequately market the property.” The Trustee then sent an invoice to Appellants, to which they objected. A hearing on the issue of attorneys’ fees was held in Bankruptcy Court on July 25, 2007. The Bankruptcy Court approved the fees as detailed in the invoice, in the amount of $4,726.00, and ordered them paid. Appellants appeal the award of fees to this Court. Appellants argue, as on the “keys” issue, that the Bankruptcy Court committed clear error when it terminated the hearing on the Trustee’s Motion to Compel without hearing all the evidence Appellants were prepared to submit. In addition, Appellants argue that the Bankruptcy Court’s findings that they interfered with the Trustee’s marketing efforts are erroneous because they always cooperated fully with the Trustee. In support of this assertion, Appellants explain that they carried the burden of managing the property for over twenty years, and add inscrutable comments, such as, “It is rather unfortunate that the lengths by which reasonable men cannot work out their differences short of litigation.” Brief of Appellants (CV-315L), page 3. As with the keys issue, Appellants do not include any transcript of the proceedings below, nor do they offer additional evidence to demonstrate their cooperation with the Trustee. The Court" }, { "docid": "11917599", "title": "", "text": "$13,951.25 in fees and $1,064.92 in costs for work that the Trustee’s attorney performed related to the prosecution of the Trustee’s Motion for Sanctions. The Court calculated these figures by adding the fees and costs set forth in Trustee’s Exhibit No. 26A, which the Trustee refers to as History Bill for Court on Attorneys [sic] Fees and Costs Associated with Motion for Sanctions. [Docket No. 102.] The Court did not include the fee entries related to “research” because Eisen researched sanctions under Bankruptcy Rule 9011; and, as set forth above in section IV(B)(1), the Court finds that Barry should be sanctioned pursuant to §§ 105 and 1927, not Rule 9011. In sum, this Court imposes sanctions against Barry in the aggregate amount of $25,121.89, representing the sum of: (1) the $2,500.00 retainer which Barry took from the Debtor; (2) the reasonable and necessary attorney fees of $6,901.25 for the Trustee’s efforts in defeating the Motion to Dismiss; (3) the reasonable and necessary costs of $704.47 incurred in defeating the Motion to Dismiss; (4) the reasonable and necessary attorney fees of $13,951.25 for the prosecution of the Motion for Sanctions; and (5) the reasonable and necessary costs of $1,064.92 incurred in prosecuting the Motion for Sanctions. Barry must immediately remit a cashier’s check in the amount of $25,121.89 made payable to Ronald Sommers, Chapter 7 Trustee. B. Show Cause Order Against the Debtor and Chad Cochener This Court finds that the Debtor violated her duties under the Code by failing to attend the continued Meeting of Creditors and for not cooperating with the Trustee in the production of certain documents. The Debtor presented two defenses as to why she should not be sanctioned for these actions. First, the Debtor was under a great deal of stress from several traumatic life events. She had just finished a rather intense divorce [Finding of Fact No. 8, Footnote No. 4] and was living with a harsh, uncaring son. [Docket No. 132, pp. 30:22-31:7.] Indeed, Chad Cochener testified under oath that he wished that he did not have to take care of his mother. The" }, { "docid": "21203502", "title": "", "text": "reasonableness is an “issue [that] still has not been decided in this case.” He is mistaken. The bankruptcy court squarely ruled that Hale’s fees were unreasonable and, pursuant to its authority under 11 U.S.C. § 329(b), ordered that the fees be disgorged. Under § 329(b), a bankruptcy court may examine the reasonableness of a debtor’s attorney fees and, “[i]f such compensation exceeds the reasonable value of any such services, the court may cancel any such agreement, or order the return of any such payment, to the extent excessive.” Here, the only service Hale provided to Debtors was the completion of a bankruptcy petition that was incomplete and erroneous and that required extensive amendments. He failed to inform Debtors about the bankruptcy process, obtain their informed consent to his limited representation, or notify them about the impending meeting of creditors. Instead, he attempted to persuade them to dismiss their petition without explaining why or how it would affect their rights. Debtors ultimately paid $1000 to correct and supplement the work that Hale performed. The bankruptcy court did not abuse its discretion in disgorging Hale of his attorney fees. C. The bankruptcy court did not abuse its discretion in sanctioning Hale. Finally, Hale argues that he was not given notice of, and an opportunity to respond to, the U.S. Trustee’s motion for sanctions against him. This argument is belied by the record. The U.S. Trustee filed an amended motion for sanctions more than six weeks in advance of the hearing, and the Trustee served Hale with the motion at two separate addresses in accordance with the applicable procedural rules. Hale therefore knew (or should have known) about the motion for sanctions when he filed a motion two days before the hearing, in which he told the bankruptcy court that “[his] presence [wa]s not mandated or necessary to the adjudication of the issues.” Hale also argues that the bankruptcy court improperly imposed sanctions under Federal Rule of Bankruptcy Procedure 9011. Under Rule 9011(c), “[i]f ... the court determines that [9011](b) has been violated, the court may ... impose an appropriate sanction upon the" }, { "docid": "22932192", "title": "", "text": "an award for the expenses incurred in preparing the February 1990 motion. Under Rule 37(a), appellees expended resources to secure the June 1990 special master order compelling depositions in San Francisco. And, under Rule 37(b)(2), the February 1990 motion was “caused by the failure” of GW to schedule depositions before February 10, 1990, in accordance with the December 1, 1989 order. Because GW had disobeyed this order, appellees had to seek further court orders compelling depositions. Thus, the $10,000 sanction against GW was proper. Finally, GW asserts that since appellees never noticed it for depositions in October 1991, it should not be sanctioned with the other appellants for disregarding this set of depositions. Appellees agree that the district court erred in including GW in its April 1992 order imposing monetary sanctions against all appellants. We thus reverse the sanction imposed in that order against GW. B . Tungsten argues that the January 1991 special master request and the June 1991 court order holding Tungsten liable for fees of $6,600 was improper because Tungsten had not violated any court orders at that time. Rule 37 authorizes the court to impose sanctions on a party only when it “fails to obey an order to provide or permit discovery.” Fed.R.Civ.P. 37(b)(2). As of June 1991, Tungsten had not disregarded court-ordered deposition dates. To the contrary, the special master noted that of all appellants, only Tungsten had not “approached this litigation and the rulings of this Court with disdain.” Consequently, because Tungsten had not violated any discovery order, the court abused its discretion in ordering Tungsten to pay $6,600 in sanctions. C Tungsten, Grover, Stonehaven, and World Union assert that the district court improperly assessed attorneys’ fees and costs against them when it dismissed the case in its April 1992 order. The court held these parties jointly and severally liable for $17,974 in fees and costs incurred by appellees in the previous year due to appellants’ violations of court discovery orders. The court found that each appellant had disregarded discovery orders. Further, the record suggests that the corporations were not independent entities. The special" }, { "docid": "19091489", "title": "", "text": "Gell v. Hartman Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990)). Whether Appellants’ due process rights were violated is a question of law, which we review de novo. Garner v. Shier (In re Garner), 246 B.R. 617, 619 (9th Cir. BAP 2000) (whether a procedure comports with due process is a question of law). DISCUSSION A. Rule 9011 The bankruptcy court awarded attorneys’ fees and costs as a sanction under authority of Bankruptcy Rule 9011. We find that the bankruptcy court erred in this application of Rule 9011. Rule 9011, like its counterpart Federal Rule of Civil Procedure 11, is designed to encourage counsel (and parties) to avoid groundless filings or pleadings filed for improper purposes, largely through the imposition of sanctions. Rule 9011 sets forth the requirement that pleadings presented to the court contain certain representations, and that a failure to adhere to the rule may result in sanctions. Appellants contend that the sanctions imposed were not allowable under Rule 9011 because the court improperly awarded attorneys’ fees predicated on a sua sponte motion. 1. Attorneys’ Fees Awardable Only Upon Motion Rule 9011(c) provides that reasonable attorneys’ fees may be awarded as a sanction only upon “motion”: (2) Nature of Sanction; Limitations. A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, directives of a nonmone-tary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys’ fees and other expenses incurred as a direct result of the violation. Fed.R.Bankr.P. 9011(c)(2) (emphasis added in text). A motion for sanctions is further described, in relevant part, in Rule 9011(c)(1)(A): (A) By Motion. A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b)." }, { "docid": "13344501", "title": "", "text": "had asserted counterclaims in the state court action. A counterclaim is an independent cause of action asserted under Fed. R. Civ. P. 13. As such, a counterclaim is an “action or proceeding against a debtor” and relief from the stay under § 362(a)(1) must be sought in order to continue its prosecution postpetition. Merrick, 175 B.R. at 336. Eisinger correctly contends that the request for attorneys’ fees and costs contained in his client’s joinder in the motion to dismiss did not constitute a counterclaim. In addition, his client’s answer to the complaint contained affirmative defenses and a request for fees and costs, but no counterclaims. In any case, the state court’s order dismissing the complaint did not award any attorneys’ fees or costs. The debtor’s assertion regarding the effect of the stay on the purported counterclaims was without merit. Olson contends that the bankruptcy court improperly denied his client’s request that the debtor be sanctioned under Rule 9011 for filing the contempt motion, be cause the motion was clearly intended to harass appellants, and was not warranted in law or fact given the applicable Ninth Circuit legal authorities. Considering that the bankruptcy court ruled in the debtor’s favor on the contempt motion, Rule 9011 sanctions were not warranted. V. CONCLUSION Appellants did not violate the automatic stay by obtaining dismissal postpetition of a state court action initiated by the debtor prepetition. The bankruptcy court’s order awarding sanctions against appellants for violating the automatic stay is REVERSED. . Unless otherwise indicated, all chapter, section and rule references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1330 and the Federal Rules of Bankruptcy Procedure, Rules 1001-9036. . Each attorney filed a separate appeal. The three related appeals were set for oral argument on the same date. One Opinion has been prepared for all three appeals. . Appellee/debtor Kenneth R. Way failed to file a timely brief in any of the three appeals. The Bankruptcy Appellate Panel entered an order on October 7, 1998 denying his motion to file a late brief. . Paul F. Eisinger is the appellant in the appeal designated" }, { "docid": "16606972", "title": "", "text": "agreement or order the return of any such payment to the extent the payment was excessive. See § 329(b). Considering the lack of - complexity and the customary legal fees that are awarded in this community for planning, preparing, and filing the necessary schedules and petition for a Chapter 7 ease, the bankruptcy court did not err in awarding Snyder $1000 as a reasonable fee for his pre-petition bankruptcy services. Snyder also disputes the bankruptcy court’s imposition of sanctions against him in the amount of $1000 for a conflict of interest with Debtor pursuant to Rule 9011. Snyder contends that the bankruptcy court never informed him of this apparent conflict of interest and never gave Snyder an opportunity to defend against this charge, which allegedly violated Snyder’s due process rights. Snyder also contests the court’s finding that a conflict of interest existed. Once again, we disagree. First, we find that Snyder did have notice that the bankruptcy court could potentially award sanctions against Snyder for a conflict of interest with Debtor. At the August 24, 1995 hearing before the bankruptcy court, Trustee informed the court and Snyder that he was “investigatfing] whether grounds exist to file a motion for sanctions.” Bankr.Hr’g Tr. of August 24, 1995 at 6. On August 31, 1995,. Trustee filed a Rule 9011 Motion for Imposition of Sanctions. Finally, Snyder himself admitted in his deposition that he might have an adverse interest with the bankruptcy estate. See Snyder Dep. at 12-13. Therefore, as Snyder clearly had notice and an opportunity to defend against the potential sanctions charge, Snyder’s due process rights were not violated. Turning to the propriety of the bankruptcy court’s $1000 sanction against Snyder for his conflict of interest, Rule 9011(a) provides: Every petition ... filed in a casé under the Code on behalf of a party represented by an attorney ... shall be signed by at least one attorney of record_ The signature of an attorney or a party constitutes ... that to the best of the attorney’s ... knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact" }, { "docid": "22932191", "title": "", "text": "necessary to explain its role in the allegedly fraudulent deal. GW also argues that the court abused its discretion in imposing the $10,000 sanction, under Federal Rule of Civil Procedure 37, for appellees’ costs incurred in filing motions in February 1990 and November 1990 to enforce the court’s discovery orders. GW contends that the fees for preparing the February 1990 motion were unrelated to its failure to appear at the October 1990 deposition. We reject this argument. The court in Liew v. Breen, 640 F.2d 1046, 1051 (9th Cir.1981), noted that “Rule 37(b)(2) provides for the award of reasonable expenses and attorney’s fees ‘caused by the failure’ to obey a court order to provide or permit discovery. This provision must be distinguished from Rule 37(a), which provides for the award of expenses resulting from efforts to secure an order compelling discovery.” See also Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1386 n. 2 (9th Cir.1988). Here, the court did not indicate under which rule it was imposing the sanction. Both rules, however, permit an award for the expenses incurred in preparing the February 1990 motion. Under Rule 37(a), appellees expended resources to secure the June 1990 special master order compelling depositions in San Francisco. And, under Rule 37(b)(2), the February 1990 motion was “caused by the failure” of GW to schedule depositions before February 10, 1990, in accordance with the December 1, 1989 order. Because GW had disobeyed this order, appellees had to seek further court orders compelling depositions. Thus, the $10,000 sanction against GW was proper. Finally, GW asserts that since appellees never noticed it for depositions in October 1991, it should not be sanctioned with the other appellants for disregarding this set of depositions. Appellees agree that the district court erred in including GW in its April 1992 order imposing monetary sanctions against all appellants. We thus reverse the sanction imposed in that order against GW. B . Tungsten argues that the January 1991 special master request and the June 1991 court order holding Tungsten liable for fees of $6,600 was improper because Tungsten had not" }, { "docid": "1309834", "title": "", "text": "and without notice and opportunity to be heard, upon a debtor and its attorneys under Rule 9011 and the court’s inherent power violated their right to due process. Ill B.R. 939. In reaching this decision, the Endrex court observed that it was undisputed that neither the creditors of the estate nor the United States Trustee had moved the court for sanctions, and that the imposition of sanctions was sua sponte. The court further noted that, although the parties had received notice that the bankruptcy court was prepared to consider the debtor’s bad faith filing and maintenance of its Chapter 11 case at the hearing on a motion to dismiss, “the record shows that the court did not mention the issue of sanctions until the close of that hearing.” Ill B.R. at 944 (emphasis in the original). The court concluded: Consequently, the appellants were deprived of any meaningful opportunity to prepare argument against the imposition of sanctions, much less present any evidence to support their argument. The problem was not corrected in the subsequent hearing on the motion for reconsideration, as the court again limited counsel’s introduction of evidence to support the appellant’s reasonableness in attempting reorganization. Ill B.R. at 944. In accord, see Jensen v. Federal Land Bank, 882 F.2d 340 (8th Cir.1989) (Rule 9011); Tom Gowney Equipment v. Shelley Irrigation Dev., 834 F.2d 833, 836 (9th Cir.1987) (Rule 11). Here, as in Endrex, it appears that the bankruptcy court’s imposition of sanctions was sua sponte and not based upon motion of any party to the bankruptcy case. Although the Bank Committee contends that BI & L was put on notice that their conduct was in issue due to the Bank Committee’s fee objections, there is no suggestion made that the Bank Committee or any other party to the bankruptcy proceeding moved the court for sanctions against BI & L. Further, it is clear from a review of cases such as Endrex and Jensen that notice pertaining to imposition of sanctions must be sufficiently specific as to provide the party a meaningful opportunity to prepare and present argument and evidence" }, { "docid": "13940956", "title": "", "text": "party to bear appellate costs could substantially offset sanctions awarded pursuant to F.R.Civ.P. 37(b) and create a disincentive to seek sanctions, thus undermining the purpose for the rule). Respondents argue that Westmoreland and Tamari are distinguishable because the awards of attorney fees were based on express provisions of Federal Rules of Civil Procedure. Their argument overlooks the express provision of Order No. 61 authorizing recovery by the trustee for acts of respondents subsequent to February 22, 1984. Because the order of this court and a statute of Title 11 of the United States Code were violated, this court may assess the appellate expenses of the contempt litigation. Schauffler v. United Ass’n of Journeymen & Apprentices of Plumbing, 246 F.2d 867, 870 (3rd Cir.1957). .Respondents question the benefit to the estate of the actions taken by the trustee’s attorneys subsequent to March 6, 1984, the date respondents purged themselves of contempt. Respondents' argument is frivolous. Clearly, the services rendered by the trustee’s attorneys after March 6, 1984, benefit the estate by preserving the award in Order No. 61 of costs and expenses incurred in prosecuting the contempt proceeding. . The reported actual time expended on this matter, 300.02 hours, includes approximately fifteen hours of travel time deleted in accordance with Order No. 129 and an accompanying, memorandum entered October 31, 1984. . Walker & Walker, P.C. is local counsel for the trustee. .Mary Walker was apparently involved in the preparation for, but did not attend, the hearing. . See In re Crabtree, 45 B.R. 463, 468-69 n. 20 (Bankr.E.D.Tenn.1984) (3.0 hours of Douglas Wickham’s services, billed at $100.00 per hour, on March 2, 1984, is duplicative). . The court has previously allowed the Cadwa-lader firm interim compensation awards including allowances for fee preparation statements of approximately three percent of the total fees and expenses requested. See In re Crabtree, 45 B.R. 463, 466 (Bankr.E.D.Tenn.1984). . Calculations by the court to determine the reduction are based on the fee rates reported on page 14 of the Schedule of Attorney Fees and Expenses, Exhibit D to the trustee’s motion to tax costs and" }, { "docid": "19996512", "title": "", "text": "there was no finding of bad faith on the part of plaintiffs or their attorneys in failing to answer the interrogatories. II. Appellants argue that the magistrate lacked authority to enter the order on November 23, 1979, awarding reasonable expenses and attorney’s fees to the defendant-union, in connection with its motion to compel discovery, after the district court entered a final judgment on September 20, 1979, dismissing the suit. We cannot agree. Despite appellants’ contentions to the contrary, the magistrate possessed the authority under 28 U.S.C. § 636(b)(1)(A) to enter non-dispositive discovery orders. Pretrial orders of a magistrate under § 636(b)(1)(A) are reviewable under the “clearly erroneous and contrary to law” standard; they are not subject to a de novo determination as are a magistrate’s proposed findings and recommendations under § 636(bXl)(B). See Calderon v. Waco Lighthouse for the Blind, 630 F.2d 352, 354-55 (5th Cir. 1980). The appellants’ argument fails to address and consider the chronology of events. In his order of April 23, 1979, which granted the union’s motion to compel discovery, the magistrate determined that the union as the unsuccessful party should be awarded its reasonable expenses in connection with the motion, including attorney’s fees. Under Rule 37(a)(4), the magistrate could not enter such an award without an opportunity for a hearing. The fact that the hearing pursuant to Rule 37(a)(4) was not conducted until after the suit was dismissed does not affect the validity of the magistrate’s ruling on April 23. Moreover, in his report and recommendation on defendants’ motion to dismiss for want of prosecution and as a discovery sanction, adopted by the district court as its opinion when it dismissed the suit, the magistrate, in noting that attorneys Pyles and McRae had been allowed to withdraw as plaintiffs’ counsel, stated that he explicitly reserved the right to determine their liability for sanctions in pending motions. Appellants have cited no authority that would bar a post-judgment assessment of discovery expenses under Rule 37(a)(4) where, prior to judgment, the court made a finding of liability and reserved ruling on the precise amount of the sanction. We" }, { "docid": "5426664", "title": "", "text": "with the filing of their motions, as provided for in Federal Rule of Civil Procedure 37(a)(4). In their motions they also request that Plaintiff be precluded from presenting certain evidence as a result of its failure to provide the requested discovery, as provided for in Rule 37(b)(2). Finally, in their replies to the Motions to Compel, they ask that they be awarded sanctions pursuant to Federal Rule of Civil Procedure 26(g). A. Rule 37(a)(4) Sanctions Defendants seek their reasonable expenses, including attorney fees, incurred in preparing the Motions to Compel. Federal Rule of Civil Procedure 37(a)(4)(C) allows a court to impose sanctions where, as here, a motion to compel is granted in part and denied in part. Under that rule, the court may “apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.” In this ease, the Court has overruled many of Plaintiffs objections, a significant number of which the Court finds were not substantially justified. The Court thus deems it just to allow Defendants to recover a portion, if not all, of the reasonable ex penses and attorney fees that they have incurred in bringing then.' Motions to Compel. To aid the Court is determining the proper amount of expenses, Defendants’ counsel shall file, within twenty (20) days of the date of filing of this Order, a pleading in which Defendants set forth the amount of expenses and attorney fees that Defendants seek to recover against Plaintiff and an affidavit itemizing the expenses and fees that Defendants incurred in bringing these Motions to Compel. Plaintiff shall have twenty (20) days thereafter to respond. The Court will then issue a second order, apportioning the expenses and fees and specifying the amount and time of payment. B. Rule 37(b)(2) Sanctions Defendants also seek sanctions pursuant to Federal Rule of Civil Procedure 37(b)(2). Defendants fails to recognize that Rule 37(b)(2) provides for the imposition of sanctions only where a party “fails to obey an order to provide or permit discovery.” No such order has been entered here. Thus, sanctions are not appropriate under" }, { "docid": "1827137", "title": "", "text": "demonstrated all of the necessary elements under § 363(h). Accordingly, the Court authorizes the Trustee to sell the estate’s interest in the Property. The Bankruptcy Code provides certain protections based on notice of the proposed sale required under Federal Rules of Bankruptcy Procedure 2002 and 6004. Either the Zeiglers or the Lagros or both can seek to purchase the estate’s interest in the Property from the Trustee, and, generally, the highest and best offer will be the accepted offer. C. The Trustee’s Motion for Sanctions Against the Zeiglers On June 25, 2004, the Trustee served upon the Zeiglers Ms first request for admissions. The Zeiglers failed to respond to the request for admissions. As a result, the Trustee filed a motion to compel the Zeiglers to respond to the discovery requests. Thereafter, on October 29, 2004, the Court entered an order compelling the Zeiglers to comply with certain discovery requests propounded by the Trustee. In addition, the Court ordered the Zeiglers to pay the Trustee the reasonable costs and fees incurred in obtaining compliance with the discovery requests. The Court reserved ruling on the costs and fees pending submission of the costs and fees incurred by the Trustee. On November 15, 2004, the Trustee’s attorney, Arthur W. Rummler, submitted an affidavit detailing the time expended in obtaining the Zeiglers’ compliance with the discovery requests. The affidavit set forth an hourly rate of $225.00 and documented 5.10 hours of time expended totaling $1,147.50. The Court finds this sum reasonable and orders the Zeiglers to pay that amount to the Trustee forthwith as a sanction pursuant to Federal Rule of Bankruptcy Procedure 7037 and Federal Rule of Civil Procedure 37(d) for their failure to comply with the Trustee’s discovery requests. IY. CONCLUSION For the foregoing reasons, the Court denies the motion of the Zeiglers and the Lagros for directed findings. The Court grants judgment in part under Count I of the complaint in favor of the Trustee and holds that the transfers of the Property from the Zeiglers to the Lagros were constructively fraudulent pursuant to 740 ILCS 160/5(a)(2) and 740 ILCS" }, { "docid": "1309833", "title": "", "text": "clause of the Fifth Amendment. See, e.g., Roadway Express, Inc. v. Piper, 447 U.S. 752, 766-767, 100 S.Ct. 2455, 2464, 65 L.Ed.2d 488 (1980); Braley v. Campbell, 832 F.2d 1504, 1514 (10th Cir.1987); In re Endrex Investments, Inc., 111 B.R. 939, 943 (D.Colo.1990). In the final fee order in this case, the bankruptcy judge referenced only Bankruptcy Rule 9011 in sanctioning BI & L for what he concluded was improper conduct and did not purport to rely upon 28 U.S.C. § 1927 or the court’s inherent authority to impose sanctions, both of which were addressed in Roadway Express. The court’s authority to impose sanctions under Roadway Express has been raised in this appeal by the United States Trustee. In Roadway Express, the Supreme Court specifically noted that sanctions “certainly should not be assessed lightly or without fair notice and an opportunity for a hearing on the record.” 447 U.S. at 767, 100 S.Ct. at 2464. In In re Endrex Investments, Inc., the Colorado district court held that a bankruptcy court’s imposition of sanctions, sua sponte and without notice and opportunity to be heard, upon a debtor and its attorneys under Rule 9011 and the court’s inherent power violated their right to due process. Ill B.R. 939. In reaching this decision, the Endrex court observed that it was undisputed that neither the creditors of the estate nor the United States Trustee had moved the court for sanctions, and that the imposition of sanctions was sua sponte. The court further noted that, although the parties had received notice that the bankruptcy court was prepared to consider the debtor’s bad faith filing and maintenance of its Chapter 11 case at the hearing on a motion to dismiss, “the record shows that the court did not mention the issue of sanctions until the close of that hearing.” Ill B.R. at 944 (emphasis in the original). The court concluded: Consequently, the appellants were deprived of any meaningful opportunity to prepare argument against the imposition of sanctions, much less present any evidence to support their argument. The problem was not corrected in the subsequent hearing on" }, { "docid": "11917598", "title": "", "text": "Barry’s Motion to Withdraw; nor is the Court awarding fees related to Eisen’s research concerning Bankruptcy Rule 9011 because the Court is not affording relief with respect to this particular Rule. Accordingly, this Court sanctions Barry $6,901.25 in fees and $704.47 in costs with respect to work the Trustee performed relating to: (1) the Debtor’s Motion to Dismiss; (2) the Debtor’s and Barry’s refusal to appear at the continued Meeting of Creditors; (3) the failure to produce the promised documents; and (4) the obtaining of documents that the Trustee is required to obtain in carrying out his duties. The Court calculated this figure by adding the fee entries set forth in Trustee’s Exhibit No. 25, which the Trustee refers to as the History Bill for Court on Attorneys [sic] and Costs Associated with the Motion to Dismiss in the Second Amended Trustee Ronald Sommers’ Exhibit List for Motion for Sanctions [Docket No. 102]. In this calculation, the Court did not include the fee entries relating to Barry’s Motion to Withdraw. Additionally, this Court sanctions Barry $13,951.25 in fees and $1,064.92 in costs for work that the Trustee’s attorney performed related to the prosecution of the Trustee’s Motion for Sanctions. The Court calculated these figures by adding the fees and costs set forth in Trustee’s Exhibit No. 26A, which the Trustee refers to as History Bill for Court on Attorneys [sic] Fees and Costs Associated with Motion for Sanctions. [Docket No. 102.] The Court did not include the fee entries related to “research” because Eisen researched sanctions under Bankruptcy Rule 9011; and, as set forth above in section IV(B)(1), the Court finds that Barry should be sanctioned pursuant to §§ 105 and 1927, not Rule 9011. In sum, this Court imposes sanctions against Barry in the aggregate amount of $25,121.89, representing the sum of: (1) the $2,500.00 retainer which Barry took from the Debtor; (2) the reasonable and necessary attorney fees of $6,901.25 for the Trustee’s efforts in defeating the Motion to Dismiss; (3) the reasonable and necessary costs of $704.47 incurred in defeating the Motion to Dismiss; (4) the reasonable" }, { "docid": "19091488", "title": "", "text": "supplemental fee request had been overlooked in the court’s decision and judgment. The court treated this as a motion for reconsideration. After reviewing the response, the court affirmed its prior decision and denied the letter motion in its second supplemental memorandum decision, dated May 1, 2001. Appellants timely appealed the April 2, 2001 judgment. ISSUES 1) Whether the bankruptcy court abused its discretion in imposing sanctions of reasonable attorneys’ fees and costs. 2) Whether the imposition of inherent power sanctions complied with the requirements of due process. 3) Whether the penalty portion of the sanction exceeded the court’s authority. STANDARDS OF REVIEW We review the bankruptcy court’s assessment of sanctions for an abuse of discretion. Caldwell v. Unified Capital Corp. (In re Rainbow Magazine, Inc.), 77 F.3d 278, 283 (9th Cir.1996). A bankruptcy court abuses its discretion if it bases its ruling “on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Predovich v. Staffer (In re Staffer), 262 B.R. 80, 82 (9th Cir. BAP 2001) (quoting Cooter & Gell v. Hartman Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990)). Whether Appellants’ due process rights were violated is a question of law, which we review de novo. Garner v. Shier (In re Garner), 246 B.R. 617, 619 (9th Cir. BAP 2000) (whether a procedure comports with due process is a question of law). DISCUSSION A. Rule 9011 The bankruptcy court awarded attorneys’ fees and costs as a sanction under authority of Bankruptcy Rule 9011. We find that the bankruptcy court erred in this application of Rule 9011. Rule 9011, like its counterpart Federal Rule of Civil Procedure 11, is designed to encourage counsel (and parties) to avoid groundless filings or pleadings filed for improper purposes, largely through the imposition of sanctions. Rule 9011 sets forth the requirement that pleadings presented to the court contain certain representations, and that a failure to adhere to the rule may result in sanctions. Appellants contend that the sanctions imposed were not allowable under Rule 9011 because the court improperly awarded attorneys’ fees predicated on" }, { "docid": "6717686", "title": "", "text": "to chapter 7 under § 1112, she cannot reconvert it to chapter 13. Attorney’s Fees It is clear from the record of this case that the debtor’s motion to convert was intended to serve the same purpose as her unwarranted motions for a continuance and her request for a pro bono attorney, namely to “cause unnecessary delay” and to cause “needless increase in the cost of ... administration of [this bankruptcy] case.” Rule 9011(a) is intended to discourage such conduct. On April 16,1997, the trustee submitted an application for attorney’s fees and expenses related to the debtor’s violation of Rule 9011(a). As noted supra at 988, the record is silent on any authorization under § 327. Accordingly, the trustee’s application is denied without prejudice. Other Sanctions As noted supra at 988, this court has the authority to sanction parties who needlessly burden the court by imposing a penalty payable to the court. See In re Memorial Estates, Inc., supra, 950 F.2d at 1370. The debtor’s frivolous objection to Putnam’s claim and related application for pro bono attorney and motions for a continuance have wasted many hours of court time. A sanction is warranted to penalize the debtor for abusing the bankruptcy process, to deter such conduct on her part in the future, and to deter others from similarly burdening the court. Accordingly, the Rule 9011(a) sanction will include an order that she pay $2,500.00. ORDER IT IS ORDERED that the trustee’s motion for judgment is granted. IT IS FURTHER ORDERED that the trustee may sell the defendant’s co-ownership interest in the Property under § 363(h); IT IS FURTHER ORDERED that the trustee’s application for attorney’s fees and costs, as a sanction under Rule 7037 F.R.Bank.P., is denied without prejudice; IT IS FURTHER ORDERED .that the defendant shall pay the clerk of court $2,500.00, as a sanction under Rule 7037 F.R.Bank.P., no later than May 30, 1997; IT IS FURTHER ORDERED that the debtor’s objection to Putnam’s claim is overruled; IT IS FURTHER ORDERED that the debtor’s motion for the appointment of a pro bono attorney is denied; IT IS FURTHER" }, { "docid": "1309745", "title": "", "text": "754 11. Fees Sought for Fee Application Preparation 754 12. Fees Sought for Pre-Disclosure Statement Hearing Litigation 754 (a) Application for Appointment of Operating Trustee 755 (b) Application to Compel Annual Stockholders Meeting 757 (c) State Court Action Against Officers and Directors 760 IV. Sanctions 764 A. The $91,582.25 Indemnification 764 1. Bankruptcy Rule 9011 764 2. Heck’s Authority to Indemnify 766 3. Due Process re Sanctions 768 a. 768 b. 768 4. The Propriety of Sanctions 769 B. The Withholding of Robert Miller Compensation of $57,596 770 V. Conclusion 771 MEMORANDUM ORDER COPENHAVER, District Judge. The appellant, Berlack, Israels & Liber-man (hereinafter, “BI & L”), is now before the court in these consolidated appeals from three orders entered by the United States Bankruptcy Court for the Southern District of West Virginia. The orders appealed from, BI & L contends, improperly denied it fees and expenses incurred during the course of its legal representation of the Equity Security Holders’ Committee of Heck’s, Inc., in the amount of $210,662.45, and imposed sanctions upon it in the amount of $149,178.25, for a cumulative penalty of $359,840.70. The court notes that the fees and expenses denied are actually $214,362.45 and, when added to the sanctions of $149,178.25, the aggregate is $363,540.70. I. Background On March 5,1987, Heck’s, Inc., and three of its subsidiaries filed voluntary petitions for bankruptcy relief under Chapter 11 of Title 11 of the United States Code, 11 U.S.C. §§ 101, et seq. (hereinafter, “the Code”). After the filing of the voluntary petitions, Heck’s and its subsidiaries continued in the possession of their properties and the operation of their businesses as debtors-in-possession (hereinafter, “DIP” or “Heck’s”) pursuant to Sections 1107 and 1108 of the Code. During the course of the Heck’s bankruptcy case, three committees wére appointed to represent creditors: (1) the Unsecured Trade Creditors’ Committee which represented Heck’s trade creditors (hereinafter, “Trade Committee”), (2) the Bank Committee which represented Heck’s bank creditors (hereinafter, “Bank Committee”), and (3) the Equity Security Holders’ Committee which represented Heck’s common stockholders (hereinafter, “Equity Committee”). Appellant BI & L was, pursuant to order of" }, { "docid": "1309744", "title": "", "text": "INDEX <D, $ Ph I.Background CO c— II.General Issues lO t- III.Denial of Fees 10 ^ t- A. Determination of Necessary Services t- B. Section 330(a) Notice and Hearing c~ c** C. Denial of Fees and Expenses Aggregating $214,362.45 00 c- 1. Fees for Intervention in Breach of Contract Action 00 t- 2. Fees Sought for BI & L’s Analysis of Sullivan & Cromwell Documents Relating to Accounting Liability <0 LO t- 3. Fees Sought for Review and Summaries of Pleadings rH LO C- 4. Fees Sought for Review of Net Operating Loss by Tax Partners t-H LO Cr- 5. Fees Sought for Fraudulent Conveyance and Preferential Transfer Research —3 oi to 6. Fees Sought for Preparation of Statements of Position cn co 7. Fees Sought for Analysis of Motion for Setoff cn co 8. Fees Sought for Appeal by Laventhol & Horwath * — 3 oí co 9. Motion of BI & L to Reconsider Order of August 11, 1987 —3 üi ^ Page 10. Increased Rates Sought by Certain BI & L Associates 754 11. Fees Sought for Fee Application Preparation 754 12. Fees Sought for Pre-Disclosure Statement Hearing Litigation 754 (a) Application for Appointment of Operating Trustee 755 (b) Application to Compel Annual Stockholders Meeting 757 (c) State Court Action Against Officers and Directors 760 IV. Sanctions 764 A. The $91,582.25 Indemnification 764 1. Bankruptcy Rule 9011 764 2. Heck’s Authority to Indemnify 766 3. Due Process re Sanctions 768 a. 768 b. 768 4. The Propriety of Sanctions 769 B. The Withholding of Robert Miller Compensation of $57,596 770 V. Conclusion 771 MEMORANDUM ORDER COPENHAVER, District Judge. The appellant, Berlack, Israels & Liber-man (hereinafter, “BI & L”), is now before the court in these consolidated appeals from three orders entered by the United States Bankruptcy Court for the Southern District of West Virginia. The orders appealed from, BI & L contends, improperly denied it fees and expenses incurred during the course of its legal representation of the Equity Security Holders’ Committee of Heck’s, Inc., in the amount of $210,662.45, and imposed sanctions upon it in the" }, { "docid": "1309818", "title": "", "text": "to the trustee motion and shareholder meeting petition and other BI & L services. In accordance with the court’s resolution of those matters on appeal, BI & L is entitled to receive $86,-445.40 therefor and is denied the balance of $13,172.00. IV. Sanctions A. The $91,582.25 Indemnification The bankruptcy judge, citing Bankruptcy Rule 9011, not only denied fees to BI & L relative to all aspects of the Putnam County litigation and the motion to appoint an operating trustee, but also reduced fees otherwise deemed allowable in the sum of $91,582.25. According to the final fee order, that amount represented the sum which Heck’s was required to pay in order to indemnify its officers and directors for attorney fees to defend the Putnam County damage action against them. See Final Fee Order, 112 B.R. at 803, 804. The parties to this appeal have stipulated that the indemnification of $91,582.25 is. allocable as follows: $82,482.25 to the action against the officers and directors and $9,100.00 to the other matters. In addition, BI & L and the Equity Committee further agree that the reasonableness of the amount of the indemnification is not contested. In this appeal, BI & L presents a threefold argument in opposition to the imposition of sanctions by the bankruptcy judge. BI & L first argues that the bankruptcy court exceeded its jurisdiction and the boundaries of Rule 9011 in sanctioning it for conduct in the state courts and in advising its client. Secondly, BI & L contends, it was improperly sanctioned in a sum equal to the $91,582.25 for which the DIP indemnified its officers and directors, arguing that the officers and directors had no right to indemnification in the first instance. Finally, BI & L contends, it was denied due process with respect to the sanctions levied in the final fee order inasmuch as the bankruptcy court failed to give BI & L either notice or an opportunity for hearing before imposing sanctions under Rule 9011. 1. Bankruptcy Rule 9011 Rule 9011 is relied upon by the bankruptcy judge in support of his denial of fees otherwise" } ]

[ { "docid": "7291011", "title": "", "text": "611 (3rd Cir.1983); Cobb v. Secretary of Health and Human Services, No. 81-60224 (E.D.Mich. July 21, 1982); Moreno v. Schweiker, No. 82-180 PHX-WECC (D.Ariz. July 8, 1982). Plaintiff’s second argument is that Section 402(x) constitutes a bill of attainder in violation of Article I Section 9 of the United States Constitution. A bill of attainder is a legislative act which imposes punishment without benefit of a judicial trial. United States v. Lovett, 328 U.S. 303, 315, 66 S.Ct. 1073, 1078, 90 L.Ed. 1252 (1946), quoting Cummings v. State of Missouri, 4 Wall. 277, 323, 18 L.Ed. 356 (1867). When an individual or a group claims that a disqualification or suspension from governmental benefits amounts to the imposition of a punishment by the legislature, the courts must examine the source of the legislative concern in establishing the disqualification. Flemming v. Nestor, 363 U.S. at 613-14, 80 S.Ct. at 1373-74. Where the source of legislative concern can be thought to be the activity or status from which (the individual is barred, the disqualification is not punishment even though it may bear harshly upon one affected. The contrary is the case where the statute in question is evidently aimed at the person or class of persons disqualified. Id. at 614, 80 S.Ct. at 1374. Here, as in Nestor, the denial of a noncontractual government benefit cannot be said to amount to a punishment. The Congress clearly focused on the fact of incarceration in determining suspension of disability benefits. Although the impact on plaintiff may be harsh, he has not succeeded in establishing that Congress’ desire was obviously aimed at the plaintiff or individuals similarly situated to plaintiff. As discussed above, the Court is convinced that one of the major reasons that Congress provided for the suspension of disability benefits while felons are incarcerated is that their needs are already provided for by the government. In accordance with the above discussion, defendant’s motion for summary judgment is hereby GRANTED and this case is ORDERED DISMISSED. . Since the filing of this suit, Congress has repealed 42 U.S.C. § 423(f) and substituted in its place" } ]

[ { "docid": "7291012", "title": "", "text": "though it may bear harshly upon one affected. The contrary is the case where the statute in question is evidently aimed at the person or class of persons disqualified. Id. at 614, 80 S.Ct. at 1374. Here, as in Nestor, the denial of a noncontractual government benefit cannot be said to amount to a punishment. The Congress clearly focused on the fact of incarceration in determining suspension of disability benefits. Although the impact on plaintiff may be harsh, he has not succeeded in establishing that Congress’ desire was obviously aimed at the plaintiff or individuals similarly situated to plaintiff. As discussed above, the Court is convinced that one of the major reasons that Congress provided for the suspension of disability benefits while felons are incarcerated is that their needs are already provided for by the government. In accordance with the above discussion, defendant’s motion for summary judgment is hereby GRANTED and this case is ORDERED DISMISSED. . Since the filing of this suit, Congress has repealed 42 U.S.C. § 423(f) and substituted in its place 42 U.S.C. § 402(x), which is almost identical in wording to Section 423(f). This change has no impact on this lawsuit. See Section 339 of the Social Security Amendments of 1983, Public Law 98-21, 97 Stat. 134 (passed April 20, 1983). . Although plaintiff consistently refers to three plaintiffs, the Court reminds plaintiff that the Court has dismissed Jerry Treadaway and Herman Vitatoe from this suit. . Section 405(h) provides: The findings and decisions of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought under Section 41 of Title 28 to recover on any claim arising under this subchapter, (emphasis added). 42 U.S.C. § 405(h)." }, { "docid": "22602171", "title": "", "text": "punishment exacted is imposed for past conduct not unlawful when engaged in, thereby violating the constitutional prohibition on ex post facto laws, see Ex parte Garland, 4 Wall. 333. Essential to the success of each of these contentions is the. validity of characterizing as “punishment” in the constitutional sense the termination of benefits under § 202 (n). In determining whether legislation which bases a disqualification on the happening of a certain past event imposes a punishment, the Court has sought to discern the objects on which the enactment in question was focused. Where the source of legislative concern can be thought to be the activity or status from which the individual is barred, the disqualification is not punishment even though it may bear harshly upon one affected. The contrary is the case where the statute in question is evidently aimed at the person or class of persons disqualified. In the earliest case on which appellee relies, a clergyman successfully challenged a state constitutional provision barring from that profession — and from many other professions and offices — all who would not swear that they had never manifested any sympathy or support for the cause of the Confederacy. Cummings v. Missouri, supra. The Court thus described the aims of the challenged enactment: “The oath could not . . . have been required as a means of ascertaining whether parties were qualified or not for their respective callings or the trusts with which they were charged. It was required in order to reach the person, not the calling. It was exacted, not from any notion that the several acts designated indicated unfitness for the callings, but because it was thought that the several acts deserved punishment ....’’ Id., at 320. (Emphasis supplied.) Only the other day the governing inquiry was stated, in an opinion joined by four members of the Court, in these terms: “The question in each case where unpleasant consequences are brought to bear upon an individual for prior conduct, is whether the legislative aim was to punish that individual' for past activity, or whether the restriction of the individual" }, { "docid": "9927367", "title": "", "text": "1066 (1912). What is forbidden is penal legislation which imposes criminal punishment for conduct which was lawful previous to its enactment. Harisiades v. Shaughnessy, 342 U.S. 580, 594, 72 S.Ct. 512, 521, 96 L.Ed. 586 (1952). Moreover, to argue successfully for either of these consti tutional protections, the plaintiff must be able to characterize validly the suspension of benefits as a punishment. U.S. v. Brown, 381 U.S. 437, 449, 85 S.Ct. 1707, 1715, 14 L.Ed.2d 484 (1965); citing U.S. v. Lovett, 328 U.S. 303, 315, 66 S.Ct. 1073, 1078, 90 L.Ed. 1252 (1946). I find that this amendment to the Social Security Act is remedial rather than punitive in nature. There has been no attempt to single out a person or class of persons for punishment, but only an effort to further the remedial purposes of the Act, which have been previously discussed. In a somewhat analogous but more severe situation is which a deported alien’s retirement benefits were completely terminated, the Supreme Court held that the mere denial of non-contractual government benefits does not constitute punishment within the meaning of the Bill of Attainder Clause. Flemming v. Nestor, supra, 363 U.S. at 616-617, 80 S.Ct. at 1375-1376. In the instant case, plaintiff’s benefits have only been suspended, not terminated. Benefits will become available again to the plaintiff when the state is no longer responsible for providing his food, clothing, shelter and other necessities. There is also an opportunity to have the benefits reinstated while still incarcerated if he becomes eligible through participation in a court approved rehabilitation program. Finally, the statute clearly states that dependents relying on the inmate’s disability benefits will continue to receive their benefits while the inmate is confined. These factors cannot be characterized as punitive. The statute is a rational and reasonable attempt by congress to provide disability benefits for those with a legitimate need for them. Plaintiff has failed to demonstrate that this statute is unconstitutional. Therefore, IT IS ORDERED that defendant’s motion for summary judgment is granted. IT IS FURTHER ORDERED that plaintiff’s motion for summary judgment is denied and the complaint is" }, { "docid": "18812148", "title": "", "text": "where the Court said: The deprivation of any rights, civil or political, previously enjoyed, may be punishment .... Disqualification from the pursuits of a lawful avocation ... has been imposed as punishment. The theory upon which our political institutions rest is, that all [persons] have certain inalienable rights — that among these are life, liberty, and the pursuit of happiness; and that in the pursuit of happiness all avocations, all honors, all positions, are alike open to everyone, .... Any deprivation or suspension of any of these rights for past conduct is punishment, .... Cummings, 71 U.S. (4 Wall) at 320, 321-22. Defendants, on the other hand, contend that denial of financial aid does not compare to any of the sanctions historically associated with bills of attainder. The fact that harm is inflicted by governmental authority does not make it punishment. United States v. Lovett, 328 U.S. 303, 324, 66 S.Ct. 1073, 1083, 90 L.Ed. 1252 (1946) (Frankfurter, J., concurring). Defendants argue that withholding federal assistance under Title IV is like the withholding of social security benefits from deportees illegally in this country that the Supreme Court upheld in Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). In that case, the Court held that the sanction was the “mere denial of a noncontractual governmental benefit”, id. at 617, 80 S.Ct. at 1376, and imposed no affirmative disability or restraint. Thus, defendants urge, § 1113 does not impose any punishment by withholding a benefit and cannot be classified as a bill of attainder. The court is not persuaded by defendants’ argument. While denial of federal financial aid is not a historical punishment, the court is not strictly confined to those sanctions that have been deemed punishment in the past. See Nixon, 433 U.S. at 475, 97 S.Ct. at 2806. If the statute in question prohibited students who could not prove they had registered for the draft from entering specific professions, Cummings would clearly dictate that the law be de dared unconstitutional. If the statute instead prohibited those students from attending any institution of higher education, the" }, { "docid": "9927368", "title": "", "text": "constitute punishment within the meaning of the Bill of Attainder Clause. Flemming v. Nestor, supra, 363 U.S. at 616-617, 80 S.Ct. at 1375-1376. In the instant case, plaintiff’s benefits have only been suspended, not terminated. Benefits will become available again to the plaintiff when the state is no longer responsible for providing his food, clothing, shelter and other necessities. There is also an opportunity to have the benefits reinstated while still incarcerated if he becomes eligible through participation in a court approved rehabilitation program. Finally, the statute clearly states that dependents relying on the inmate’s disability benefits will continue to receive their benefits while the inmate is confined. These factors cannot be characterized as punitive. The statute is a rational and reasonable attempt by congress to provide disability benefits for those with a legitimate need for them. Plaintiff has failed to demonstrate that this statute is unconstitutional. Therefore, IT IS ORDERED that defendant’s motion for summary judgment is granted. IT IS FURTHER ORDERED that plaintiff’s motion for summary judgment is denied and the complaint is dismissed. . Plaintiff continually refers to the “termination” of his benefits. However the title and relevant language of the statute cover only a “suspension” of benefits during incarceration. Moreover, this suspension is not applicable to any prisoner who is participating in a rehabilitation program approved by a court of law and which the Secretary of Health and Human Services determines will result in substantial gainful activity within a reasonable period of time after release. The suspension also does not affect auxiliary benefits payable to the prisoner’s dependents. 42 U.S.C. 423(f)(1) and (2)." }, { "docid": "234186", "title": "", "text": "reason of persistent aggravated antisocial or criminal behavior, has evidenced a propensity toward criminal activity, such as to demonstrate clearly an actual danger to society. Such persons are required to be committed to a special institution for the combined purposes of incarceration and treatment until such time as they are judicially determined not to be defective delinquents. The Defective Delinquents Act makes a valid distinction between criminal conduct as such, and criminal conduct, together with other factors, which, in a judicial proceeding embodying all of the safeguards of the rights of the subject encompassed in the concept of procedural due process, serves as a basis for an adjudication that a subject is a defective delinquent. The purpose of an adjudication of defective delinquency is not to impose additional punishment as such for past criminal conduct, but to provide for treatment, if treatment is possible, or protection of the subject and society, if treatment is not possible, or both, so long as defective delinquency continues. That these purposes and objectives render inapplicable any ex post facto prohibition is made clear by reference to Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). Factually, that ease is quite different from the case at bar, because it concerned the validity of a provision of the Social Security Act which terminated benefits payable to an alien deported on the ground of Communist party membership. But, in holding that the provision of the statute under attack was not, inter alia, an ex post facto law, the Court made the following significant comments (363 U.S. pp. 613-614, 80 S.Ct. p. 1374, 4 L.Ed.2d p. 1446); “In determining whether legislation which bases a disqualification on the happening of a certain past event imposes a punishment, the Court has sought to discern the objects on which the enactment in question was focused. Where the source of legislative concern can be thought to be the activity or status from which the individual is barred, the disqualification is not punishment even though it may bear harshly upon one affected. The contrary is the case where the" }, { "docid": "2766519", "title": "", "text": "to social security retirement benefits because the benefits were earned and placed into a trust by him; (2) § 402(x) violates his constitutional rights by suspending his benefits while he is in prison; and (3) the payment of benefits while in prison will prevent him from becoming a burden on the community when he is released. Participation in the social security system is a noncontractual social welfare benefit. See Weinberger v. Salfi, 422 U.S. 749, 768, 95 S.Ct. 2457, 2468, 45 L.Ed.2d 522 (1975); Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435 (1960). Social security recipients’ benefits are not dependent on the amount that they have paid into the social security system by taxation. See Washington v. Secretary of Health and Human Services, 718 F.2d 608, 610 (3d Cir.1983). Furthermore, although social security is an earned benefit program, Congress has wide latitude to create classifications for the allocation of benefits. See Califano v. Goldfarb, 430 U.S. 199, 210, 97 S.Ct. 1021, 1028, 51 L.Ed.2d 270 (1977); Salfi, 422 U.S. at 776-77, 95 S.Ct. at 2472-73. A statutory classification providing for noncontractual social security benefits will be considered unconstitutional only if the classification is patently arbitrary, utterly lacking in rational justification. See Salfi, 422 U.S. at 768, 95 S.Ct. at 2468; Nestor, 363 U.S. at 611, 80 S.Ct. at 1373. If the goals sought are legitimate and the classification adopted is rationally related to achievement of those goals, then the classification is not arbitrary. See Salfi, 422 U.S. at 769, 95 S.Ct. at 2468. Plaintiff has the burden to prove that the suspension of benefits to incarcerated felons not participating in court-approved rehabilitation programs is arbitrary and lacking in rational justification. The goal of social security is to replace a worker’s lost earnings. See S.Rep. No. 987, 96th Cong., 2d Sess. 5, reprinted in 1980 U.S.Code Cong. & Ad.News 4787, 4794 (legislative history of 42 U.S.C. § 423(f)); Anderson v. Social Security Administration, 567 F.Supp. 410, 412 (D.Colo.1983). Because a confined felon, such as plaintiff, is maintained at public expense, he has no need for" }, { "docid": "234187", "title": "", "text": "prohibition is made clear by reference to Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). Factually, that ease is quite different from the case at bar, because it concerned the validity of a provision of the Social Security Act which terminated benefits payable to an alien deported on the ground of Communist party membership. But, in holding that the provision of the statute under attack was not, inter alia, an ex post facto law, the Court made the following significant comments (363 U.S. pp. 613-614, 80 S.Ct. p. 1374, 4 L.Ed.2d p. 1446); “In determining whether legislation which bases a disqualification on the happening of a certain past event imposes a punishment, the Court has sought to discern the objects on which the enactment in question was focused. Where the source of legislative concern can be thought to be the activity or status from which the individual is barred, the disqualification is not punishment even though it may bear harshly upon one affected. The contrary is the case where the statute in question is evidently aimed at the person or class of persons disqualified. * * •» ” The Court then reviewed a number of its past decisions. In each, where the validity of a statute was upheld against the argument that it was a prohibited ex post facto law, it was found that the purpose of the statute was not punishment to the person, but the protection of other interests, even though there was an incidental harsh effect on the person. The Maryland Defective Delinquents Act is of this type, because its purpose is not the imposition of additional punishment for a crime for which a conviction has been obtained, but the protection of an individual and society from a dangerous condition, of which the past commission of crime is one symptom, and the treatment of that condition which, in a separate proceeding, has been judicially determined to exist. Viewed in the light of the test of the Flemming case, supra, the 1961 amendments are not prohibited ex post facto laws, because the basic" }, { "docid": "9927365", "title": "", "text": "of the disability program and the requirement of due process. The purpose of awarding social security disability benefits is to replace a loss of earnings caused by the disability. The benefits are a substitute for work a person would otherwise be able to obtain, and they alleviate extreme economic hardships by providing minimal living expenses for necessities such as food, clothing, shelter and medical care. Continued payment of such benefits to those incarcerated in prison does not promote this legislative purpose. Inmates are not subject to the same circumstances or economic hardships as those outside the prison walls and have no need for a continuing source of income. The Supreme Court in Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960), has cautioned against a court overstepping its bounds in cases such as this: Particularly when we deal with a withholding of a noncontractual benefit under a social welfare program such as this, we must recognize that the Due Process Clause can be thought to interpose a bar only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification. Id. at 611, 80 S.Ct. at 1373. This legislation suspending benefits to incarcerated felons coincides with the legitimate and reasonable goals of the Social Security Act to alleviate economic hardship from the inability to work, without providing a disincentive for rehabilitation for return to work. Further, the statute specifically states that an inmate may continue to receive benefits if he or she is participating in a court approved rehabilitation program. This provides any inmate with an opportunity to be heard in order to establish a right to continued benefits. I hold that the suspension of disability benefits to those incarcerated felons not involved in an approved rehabilitation program does not violate plaintiff’s due process rights. Plaintiff also alleges that suspension of his disability benefits constitutes a bill of attainder and an ex post facto law. A ban on ex post facto laws, however, applies only to laws respecting criminal punishment. Johannessen v. United States, 225 U.S. 227, 242, 32 S.Ct. 613, 617, 56 L.Ed." }, { "docid": "22602217", "title": "", "text": "impose punishment on Congress' power to regulate immigration. It escapes the common-sense conclusion that Congress has imposed punishment by finding the requisite rational nexus to a granted power in the supposed furtherance of the Social Security program “enacted pursuant to Congress’ power to ‘spend money in aid of the “general welfare.” ’ ” I do not understand the Court to deny that but for that connection, § 202 (n) would impose punishment and not only offend the constitutional prohibition on ex post jacto laws but also violate the constitutional guarantees against imposition of punishment without a judicial trial. The Court’s test of the constitutionality of § 202 (n) is whether the legislative concern underlying the statute was to regulate “the activity or status from which the individual is barred” or whether the statute “is evidently aimed at the person or class of persons disqualified.” It rejects the inference that the statute is “aimed at the person or class of persons disqualified” by relying upon the presumption of constitutionality. This presumption might be a basis for sustaining the statute if in fact there were two opposing inferences which could reasonably be drawn from the legislation, one that it imposes punishment and the other that it is purposed to further the administration of the Social Security program. The Court, however, does not limit the presumption to that use. Rather the presumption becomes a complete substitute for any supportable finding of a rational connection of § 202 (n) with the Social Security program. For me it is not enough to state the test and hold that the presumption alone satisfies it. I find it necessary to examine the Act and its consequences to ascertain whether there is ground for the inference of a congressional concern with the administration of the Social Security program. Only after this inquiry would I consider the application of the presumption. The Court seems to acknowledge that the statute bears harshly upon the individual disqualified, but states that this is permissible when a statute is enacted as a regulation. of the activity. But surely the harshness of the consequences" }, { "docid": "22602170", "title": "", "text": "cf. Carmichael v. Southern Coal Co., 301 U. S. 495, 510-513. Nor, apart from this, can it be deemed irrational for Congress to have concluded that the public purse should not be utilized to contribute to the support of those deported on the grounds specified in the statute. We need go no further to find support for our conclusion that this provision of the Act cannot be condemned as so lacking in rational justification as to offend due process. III. The remaining, and most insistently pressed, constitutional objections rest upon Art. I, § 9, cl. 3, and Art. Ill, § 2, cl. 3, of the Constitution, and the Sixth Amendment. It is said that the termination of appellee’s benefits amounts to punishing him without a judicial-trial, see Wong Wing v. United States, 163 U. S. 228; that the termination of benefits constitutes the imposition of punishment by legislative act, rendering § 202 (n) a bill of attainder, see United States v. Lovett, 328 U. S. 303; Cummings v. Missouri, 4 Wall. 277; and that the punishment exacted is imposed for past conduct not unlawful when engaged in, thereby violating the constitutional prohibition on ex post facto laws, see Ex parte Garland, 4 Wall. 333. Essential to the success of each of these contentions is the. validity of characterizing as “punishment” in the constitutional sense the termination of benefits under § 202 (n). In determining whether legislation which bases a disqualification on the happening of a certain past event imposes a punishment, the Court has sought to discern the objects on which the enactment in question was focused. Where the source of legislative concern can be thought to be the activity or status from which the individual is barred, the disqualification is not punishment even though it may bear harshly upon one affected. The contrary is the case where the statute in question is evidently aimed at the person or class of persons disqualified. In the earliest case on which appellee relies, a clergyman successfully challenged a state constitutional provision barring from that profession — and from many other professions and" }, { "docid": "2766518", "title": "", "text": "the virtually identically worded predecessor of § 402(x), 42 U.S.C. § 423(f) ] have held that § 423(f) is constitutional. See Washington v. Secretary of Health and Human Services, 718 F.2d 608 (3d Cir.1983); Pace v. United States, 585 F.Supp. 399 (S.D.Tex.1984); Anderson v. Social Security Administration, Dept. of Health and Human Services, 567 F.Supp. 410 (D.Colo.1983).... The single court to address the issue of whether § 402(x), the successor of § 423(f), is constitutional held that it is, and stated that the fact that § 402(x) replaced § 423(f) during the pendency of that lawsuit had no impact. Hopper v. Schweiker, [596 F.Supp. 689 (M.D.Tenn.1984) ]. Therefore, the courts’ upholding of § 423(f) as constitutional applies with equal force to § 402(x).” Buccheri-Bianca v. Hinkle, No. 84-0764W, slip op. at 3-4 (D.Utah Dec. 27, 1984). The district court concluded plaintiff could make no rational legal argument in support of his claims and dismissed the action as frivolous within the meaning of 28 U.S.C. § 1915(d). On appeal, plaintiff contends that (1) he is entitled to social security retirement benefits because the benefits were earned and placed into a trust by him; (2) § 402(x) violates his constitutional rights by suspending his benefits while he is in prison; and (3) the payment of benefits while in prison will prevent him from becoming a burden on the community when he is released. Participation in the social security system is a noncontractual social welfare benefit. See Weinberger v. Salfi, 422 U.S. 749, 768, 95 S.Ct. 2457, 2468, 45 L.Ed.2d 522 (1975); Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435 (1960). Social security recipients’ benefits are not dependent on the amount that they have paid into the social security system by taxation. See Washington v. Secretary of Health and Human Services, 718 F.2d 608, 610 (3d Cir.1983). Furthermore, although social security is an earned benefit program, Congress has wide latitude to create classifications for the allocation of benefits. See Califano v. Goldfarb, 430 U.S. 199, 210, 97 S.Ct. 1021, 1028, 51 L.Ed.2d 270 (1977); Salfi, 422 U.S." }, { "docid": "12933248", "title": "", "text": "object is the curtailment of the business of betting or wagering. Plaintiff is not a person engaged in the business of betting or wagering. Telephone News System, Inc. v. Illinois Bell Tel. Co., D.C., supra 210 F.Supp. at 477. But plaintiff provides a service useful to persons engaged in the business of betting or wagering, and by restricting plaintiff's use of the telephone, the government restricts activities on which “modern bookmaking depends.” Plaintiff sustains a loss by reason of the restrictions, but the person aimed at is the bookmaker, not the plaintiff. Plaintiff’s loss is incidental to the suppression of the business of betting and wagering that is the intent of the statute. It thus appears that the purpose of section 1084(d) is not penal but regulatory. Its object is the suppression of gambling by elimination of rapid transmission of gambling information essential to modern bookmaking: Its focus is regulation of the use of the telephone for the transmission of gambling information. The loss sustained by plaintiff is a relevant incident to the regulation of activities which are the real object of the legislation. Accordingly, it cannot be said that the statute is penal in intent: “Where the source of legislative concern can be thought to be the activity * * * from which the individual is barred, the disqualification is not punishment even though it may bear harshly upon one affected.” Flemming v. Nestor, supra 363 U.S. at 614, 80 S.Ct. at 1374, 4 L.Ed.2d 1435. As the legislative history establishes the non-penal aim of subsection (d), it is unnecessary to make a detailed analysis of those factors to be considered absent such a clear intent. It is appropriate to note summarily, however, that the discontinuation of telephone service is not an “affirmative disability or restraint”; it is not historically regarded as punishment; it is not meant to promote retribution and deterrent, but to prevent the continued use of communications to facilitate professional gambling activities; it has an “alternative purpose” and does not appear to be excessive in relation to that purpose. Moreover, although the behavior to which it" }, { "docid": "9927366", "title": "", "text": "statute manifests a patently arbitrary classification, utterly lacking in rational justification. Id. at 611, 80 S.Ct. at 1373. This legislation suspending benefits to incarcerated felons coincides with the legitimate and reasonable goals of the Social Security Act to alleviate economic hardship from the inability to work, without providing a disincentive for rehabilitation for return to work. Further, the statute specifically states that an inmate may continue to receive benefits if he or she is participating in a court approved rehabilitation program. This provides any inmate with an opportunity to be heard in order to establish a right to continued benefits. I hold that the suspension of disability benefits to those incarcerated felons not involved in an approved rehabilitation program does not violate plaintiff’s due process rights. Plaintiff also alleges that suspension of his disability benefits constitutes a bill of attainder and an ex post facto law. A ban on ex post facto laws, however, applies only to laws respecting criminal punishment. Johannessen v. United States, 225 U.S. 227, 242, 32 S.Ct. 613, 617, 56 L.Ed. 1066 (1912). What is forbidden is penal legislation which imposes criminal punishment for conduct which was lawful previous to its enactment. Harisiades v. Shaughnessy, 342 U.S. 580, 594, 72 S.Ct. 512, 521, 96 L.Ed. 586 (1952). Moreover, to argue successfully for either of these consti tutional protections, the plaintiff must be able to characterize validly the suspension of benefits as a punishment. U.S. v. Brown, 381 U.S. 437, 449, 85 S.Ct. 1707, 1715, 14 L.Ed.2d 484 (1965); citing U.S. v. Lovett, 328 U.S. 303, 315, 66 S.Ct. 1073, 1078, 90 L.Ed. 1252 (1946). I find that this amendment to the Social Security Act is remedial rather than punitive in nature. There has been no attempt to single out a person or class of persons for punishment, but only an effort to further the remedial purposes of the Act, which have been previously discussed. In a somewhat analogous but more severe situation is which a deported alien’s retirement benefits were completely terminated, the Supreme Court held that the mere denial of non-contractual government benefits does not" }, { "docid": "18812149", "title": "", "text": "security benefits from deportees illegally in this country that the Supreme Court upheld in Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). In that case, the Court held that the sanction was the “mere denial of a noncontractual governmental benefit”, id. at 617, 80 S.Ct. at 1376, and imposed no affirmative disability or restraint. Thus, defendants urge, § 1113 does not impose any punishment by withholding a benefit and cannot be classified as a bill of attainder. The court is not persuaded by defendants’ argument. While denial of federal financial aid is not a historical punishment, the court is not strictly confined to those sanctions that have been deemed punishment in the past. See Nixon, 433 U.S. at 475, 97 S.Ct. at 2806. If the statute in question prohibited students who could not prove they had registered for the draft from entering specific professions, Cummings would clearly dictate that the law be de dared unconstitutional. If the statute instead prohibited those students from attending any institution of higher education, the deprivation’s punitive character would also be obvious. The fact that the challenged statute deprives students of the practical means to achieve the education necessary to pursue many vocations in our society means only that the congressional means of effecting the deprivation is less direct; the statute’s result is still to punish students who cannot prove their innocence. In addition, the group affected — nonregistered students — is a group viewed by some as disloyal, just as those who had aided the confederacy were thought to be disloyal in post-Civil War times and just as Communists were thought to be disloyal in the Cold War era. See, e.g., Cummings, 71 U.S. (4 Wall) 277, 18 L.Ed. 356 (1867); United States v. Brown, 381 U.S. 437, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965). Considering the importance of the opportunity to seek a college education in these times, deprivation of that opportunity based on past conduct of a group deemed to be disloyal seems to this court to be punishment. Flemming v. Nestor does not mandate a different" }, { "docid": "2812197", "title": "", "text": "Act of 1953, which in effect disqualified any convicted felon from holding office in a waterfront labor organization. Among the charges leveled at the proscription were that the disqualification amounted to both an ex post facto law and a bill of attainder in violation of the Fifth Amendment. The Court specifically rejected both contentions: “The distinguishing feature of a bill of attainder is the substitution of a legislative for a judicial determination of guilt. (Citation omitted). Clearly, § 8 embodies no further implications of appellant’s guilt than are contained in his 1920 judicial conviction; and so it manifestly is not a bill of attainder. The mark of an ex post facto law is the imposition of what can fairly be designated punishment for past acts. The question in each case where unpleasant consequences are brought to bear upon an individual for prior conduct, is whether the legislative aim was to punish that individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation, such as the proper qualifications for a profession.” (363 U.S. at 160, 80 S.Ct. at 1155). The condition attached to plaintiff Hoffa’s commutation disqualifying him from union management is virtually identical to the type of regulation sustained in De Veau. The most striking difference is the fact that in De Veau it was the state legislature which imposed the restriction while here the restriction came about by way of executive action. We find, however, that this difference does not legally distinguish De Veau from the case at bar. Just as the restriction in De Veau was promulgated pursuant to proper legislative authority, we have found that the condition attached to Hoffa’s commutation emanated from the President’s explicit grant of power under Article II, Section 2 Clause One of the Constitution. To say that the President is “legislating” when he attaches a condition such as the one at issue here is simply to beg the question; if the President’s power includes the authority to attach conditions to pardons or commutations, the fact that the resulting" }, { "docid": "2766520", "title": "", "text": "at 776-77, 95 S.Ct. at 2472-73. A statutory classification providing for noncontractual social security benefits will be considered unconstitutional only if the classification is patently arbitrary, utterly lacking in rational justification. See Salfi, 422 U.S. at 768, 95 S.Ct. at 2468; Nestor, 363 U.S. at 611, 80 S.Ct. at 1373. If the goals sought are legitimate and the classification adopted is rationally related to achievement of those goals, then the classification is not arbitrary. See Salfi, 422 U.S. at 769, 95 S.Ct. at 2468. Plaintiff has the burden to prove that the suspension of benefits to incarcerated felons not participating in court-approved rehabilitation programs is arbitrary and lacking in rational justification. The goal of social security is to replace a worker’s lost earnings. See S.Rep. No. 987, 96th Cong., 2d Sess. 5, reprinted in 1980 U.S.Code Cong. & Ad.News 4787, 4794 (legislative history of 42 U.S.C. § 423(f)); Anderson v. Social Security Administration, 567 F.Supp. 410, 412 (D.Colo.1983). Because a confined felon, such as plaintiff, is maintained at public expense, he has no need for a continuing source of social security income. See S.Rep. No. 987, supra; Washington, 718 F.2d at 611. Suspension of benefits to confined felons who are not participating in rehabilitation programs is consistent with the goal of the social security program to alleviate economic hardship. Plaintiff has failed to persuade us that § 402(x)’s classification scheme is either arbitrary or without rational justification. See Washington, 718 F.2d at 611. Furthermore, we see nothing in § 402(x) that would prevent plaintiff from making a renewed application for benefits upon admission to a rehabilitation program or release from custody. See id. Plaintiff also contends the magistrate or district court acted prejudicially by denying plaintiff a hearing and dismissing the action as frivolous. The record does not support this allegation. AFFIRMED. The mandate shall issue forthwith. . 42 U.S.C. § 402(x)(l) provides: (1) Notwithstanding any other provision of this subchapter, no monthly benefits shall be paid under this section or under section 423 of this title to any individual for any month during which such individual is confined in" }, { "docid": "10050565", "title": "", "text": "or grossly disproportionate to the refusal to comply with the statutory mandate. Plaintiffs also allege the statute violates the ex post facto clause of the Constitution. In general, the constitutional proscription of ex post facto laws “applies only to penal statutes which disadvantage the offender affected by them,” Collins v. Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 2718, 111 L.Ed.2d 30 (1990), and provides that legislatures may not retroactively change the definition of a crime nor increase the punishment for a crime. Id. at 43, 110 S.Ct. at 2719. Because the court has concluded the statute is not punitive but farthers a governmental interest in law enforcement, it follows that the statute does not violate ex post facto principles. Rather, the court views the statute as furthering a significant government interest through a minimal intrusion for which few, if any, ’ alternatives exist. Although the individual inmate may experience brief discomfort as a result of the statute, the impact of the procedure is slight and cannot be characterized as punitive. Accord, Jones v. Murray, 962 F.2d 302, 309 (4th Cir.1992). Plaintiffs next contend the statute must be struck down as an unconstitutional bill of attainder. A bill of attainder is “a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a jury trial.” Nixon v. Administrator, Gen. Servs., 433 U.S. 425, 468, 97 S.Ct. 2777, 2803, 53 L.Ed.2d 867 (1977). Plaintiffs allege the Kansas Legislature, by enacting the statute, improperly usurped judicial authority and effectively imposed additional punishment upon those convicted of certain crimes without affording them the opportunity to be heard. However, the minimal intrusion imposed incident to the statute does not result in punishment for the reasons already set forth, nor does this argument consider the notice which inheres in the legislative process. The court therefore rejects this argument. Finally, plaintiffs assert the statute denies them equal protection by imposing a burden on those convicted of certain crimes in the absence of any compelling state interest. “The Equal Protection Clause of the Fourteenth Amendment commands that no States" }, { "docid": "12933249", "title": "", "text": "activities which are the real object of the legislation. Accordingly, it cannot be said that the statute is penal in intent: “Where the source of legislative concern can be thought to be the activity * * * from which the individual is barred, the disqualification is not punishment even though it may bear harshly upon one affected.” Flemming v. Nestor, supra 363 U.S. at 614, 80 S.Ct. at 1374, 4 L.Ed.2d 1435. As the legislative history establishes the non-penal aim of subsection (d), it is unnecessary to make a detailed analysis of those factors to be considered absent such a clear intent. It is appropriate to note summarily, however, that the discontinuation of telephone service is not an “affirmative disability or restraint”; it is not historically regarded as punishment; it is not meant to promote retribution and deterrent, but to prevent the continued use of communications to facilitate professional gambling activities; it has an “alternative purpose” and does not appear to be excessive in relation to that purpose. Moreover, although the behavior to which it applies is already a crime, the purpose of the sanction is to prevent continued transmissions of information useful to bookmakers rather than to provide an additional penalty for the violation of law. Finally, we are unable to discover any persuasive indication that Congress’s aim in enacting subsection (d) was penal, much less that “unmistakable evidence of punitive intent” required to strike down a congressional enactment on that ground. In presenting its contentions regarding the alleged penal character of subsection (d), plaintiff has placed great emphasis upon the active role of the government in .this case, which, in seeking permission to intervene in this action, asserted that it was the “real party in interest.” We do not see how the government’s participation in this proceeding, together with its role in advising the telephone company of its duty to withdraw service to the plaintiff, establishes the penal character of the provision or of this action. It is helpful to consider the background of public utility law and practice against which this provision was enacted. Although the procedures" }, { "docid": "9927364", "title": "", "text": "§ 423(f)(1). The three principle changes to the Social Security Act which became effective in 1980 after the passage of Section 423(f) provided for the permanent disregard of felony-related impairments, the temporary disregard of impairments connected with confinement, and the suspension of benefit payments during incarceration. Plaintiff’s complaint is directed only to the third condition which requires suspension of disability benefits for any month during which the claimant is confined in a penal institution due to conviction of a felony committed at any time. 42 U.S.C. 423(f)(1). The plaintiff contends that this statute is unconstitutional because it constitutes a bill of attainder and an ex post facto law. He also alleges that enactment of this statute is a violation of his due process rights. For the following reasons, I hold that the suspension of benefits for inmates in penal institutions is not unconstitutional. The argument that Section 423(f)(1) results in a deprivation of property without due process of law is meritless. The suspension of benefits for incarcerated felons is fully consistent with the rational purpose of the disability program and the requirement of due process. The purpose of awarding social security disability benefits is to replace a loss of earnings caused by the disability. The benefits are a substitute for work a person would otherwise be able to obtain, and they alleviate extreme economic hardships by providing minimal living expenses for necessities such as food, clothing, shelter and medical care. Continued payment of such benefits to those incarcerated in prison does not promote this legislative purpose. Inmates are not subject to the same circumstances or economic hardships as those outside the prison walls and have no need for a continuing source of income. The Supreme Court in Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960), has cautioned against a court overstepping its bounds in cases such as this: Particularly when we deal with a withholding of a noncontractual benefit under a social welfare program such as this, we must recognize that the Due Process Clause can be thought to interpose a bar only if the" } ]

[ { "docid": "10771892", "title": "", "text": "$105, the plaintiff clearly is able to pay the basic rent with not more than thirty-five percent of his adjusted income as required by this Circular and thus he qualifies for membership in Section 236 housing, such as the Meadow Ridge Townhouse Project, the housing in question. JURISDICTION This Court has jurisdiction of the cause herein under Section 1331, Title 28, United States Code, since this is an action arising under the Constitution and Laws of the United States and the value of the subsidy which could enure to the plaintiff’s benefit exceeds the sum of $10,000. Further jurisdiction of this cause is also present under Section 1337, Title 28, United States Code, since this is a civil action arising under the National Housing Act which is an act of Congress regulating commerce. United States v. Emory, 314 U.S. 423, 433, 62 S.Ct. 317, 86 L.Ed. 315. On its face the complaint herein does show that the National Housing Act is a statute regulating commerce in that the discriminatory operation of private rental housing, especially in the case at bar where such private rental housing is subsidized by the federal government, has been “deemed adequate to show a constitutionally prohibitable adverse effect on commerce.” Atlanta Motel v. United States, 379 U.S. 241, 273, 85 S.Ct. 348, 366, 13 L.Ed.2d 258, 277; Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290; Jones v. Mayer, 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189. In support of its contention that the complaint does not on its face show that the National Housing Act is a statute regulating commerce the defendant refers to Mamber v. Second Federal Savings and Loan Association (D.Mass.) 275 F.Supp. 170, wherein the court held that the complaint would be dismissed for lack of jurisdiction over the subject matter because the complaint contained no statement of the grounds upon which the court’s jurisdiction depends and also because the Home Owners’ Loan Act of 1933, § 1461 et seq., Title 12, U.S.C., is not an act regulating commerce such as might make applicable the provisions of Section" } ]

[ { "docid": "6030346", "title": "", "text": "Winningham essentially asks this court to find a clear constitutional duty on the part of the defendants to ignore their statutory mandate. This we may not do. Mrs. Winningham’s constitutional claim is grounded in the equal protection component of the due process clause of the fifth amendment. She asserts that, unless she receives a rent supplement, she will be forced to relocate in substandard housing. Therefore, she maintains, no rational basis exists for classifying her differently from those presently residing in substandard housing or from those who moved into “section 236” housing from substandard housing. As we indicate later in our discussion of the merits of this action, the “clarity” of the constitutional duty urged by Mrs. Winningham is not apparent to us. We therefore hold that section 1361 does not provide a jurisdictional basis for this action. B. Jurisdiction Under Section 1337. We believe that the district court had subject matter jurisdiction under section 1337. This section confers jurisdiction on district courts over certain actions involving commerce. The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies. 28 U.S.C. § 1337 (1970). Mrs. Winningham’s action arises under section 101 of the Housing and Urban Development Act of 1965 which created the rent supplement program. Pub.L. No. 89 — 117, 79 Stat. 451^454, as amended, 12 U.S.C. § 1701s (1970). She asserts a right to receive rent supplement payments. [This] right, if it exists, comes into being from the Federal Act and the effectual enforcement of that right depends on the validity, construction or effect of that statute. Caulfield v. United States Dep’t of Agriculture, 293 F.2d 217, 222 (5th Cir. 1961) (en banc) (dictum), citing Gully v. First Nat’l Bank, 299 U.S. 109, 112-14, 57 S.Ct. 96, 81 L.Ed. 70 (1936). Moreover, section 1337 does not require that a minimum amount be in controversy. 293 F.2d at 222 n. 10. Thus subject matter jurisdiction existed in the district court if the Housing and Urban Development Act of 1965 is" }, { "docid": "5965777", "title": "", "text": "the proof is in, the amount in controversy for each individual plaintiff will be less than $10,000, but the court cannot say at the present time that such amount is, to a legal certainty, less than $10,000. As plaintiffs assert rights allegedly secured to them by the National Housing Act, there can be no question that this action “arises under the Constitution, laws, or treaties of the United States”, as required by § 1331(a). Therefore, the court finds that subject matter jurisdiction may be asserted by virtue of the existence of a federal question. Second, it is clear to this court that subject matter jurisdiction may be asserted with respect to the federal defendants by way of mandamus, pursuant to § 1361. See, Hahn v. Gottlieb, 430 F.2d 1243, 1245 n. 1 (1st Cir. 1970). As mandamus jurisdiction properly exists as to the federal defendants, then pendent jurisdiction exists as to the private defendants (see, United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) ), who may be joined to the action as indispensible parties, pursuant to Rule 19(a), Fed.R.Civ.P. (see, Langevin v. Chenango Court, Inc., 447 F.2d 296, 300 (2d Cir. 1971) ). Finally, amicus has raised the argument that subject matter jurisdiction may be asserted through 28 U.S.C. § 1337, on the grounds that this action arises under an act of Congress regulating commerce. This approach was taken by the Third Circuit Court of Appeals in Davis v. Romney, 490 F.2d 1360 (3rd Cir. 1974), an action in which plaintiffs asserted rights secured by Sections 221(d)(2) and 235 of the National Housing Act (12 U.S.C. § 1715i(d)(2) and § 1715z). The Court stated as follows : The commerce power clearly is a significant source of federal power for the National Housing Act, which was largely designed to stimulate the building trades and increase employment . . . and to control various aspects of interstate commerce connected with mbrtgage financing. 490 F.2d at 1365-1366. The Court drew on several sources to reach this conclusion, including the recognition by the U. S. Supreme Court" }, { "docid": "18832598", "title": "", "text": "itself is actually an incentive that is superimposed upon other federal housing and mortgage insurance programs. Construing the waiver to apply to suits arising under the rent supplement program is, therefore, consistent with the Supreme Court’s statement in Burr that Congress intended the waiver language of § 1702 to confine the Secretary’s authority to sue and be sued to actions related to the Secretary’s official functions. In light of the nature of the rent supplement program, administra lion of its provisions must clearly be deemed a part of the Secretary’s official functions. For these reasons, I conclude that the claims asserted by plaintiffs are not barred by sovereign immunity. In response to plaintiffs’ motion, defendant has also contended that this court has no jurisdiction over plaintiffs’ claims. Plaintiffs have asserted jurisdiction under 28 U.S.C. §§ 1337 and 1361 (and, in their reply memorandum to HUD’s cross-motion for summary judgment, under § 1331). It has been held that national housing legislation regulates commerce within the meaning of § 1337 and that the district courts have jurisdiction over actions arising thereunder. Davis v. Romney, 490 F.2d 1360 (3d Cir. 1974). Accord, Dubose v. Hills, 405 F.Supp. 1277 (D.C.Conn.1975), motion denied to vacate, 2 Cir., 420 F.Supp. 399; Metropolitan Area Housing Alliance v. United States Department of Housing & Urban Development, 69 F.R.D. 633 (N.D.Ill. 1976). In Davis, plaintiffs sought declara tory and injunctive relief and money damages against the United States alleging a violation of the requirement that insured mortgages be secured by property which meets requirements of local ordinances. Although plaintiffs’ claim for money damages was dismissed for failure to state a claim, the Court of Appeals held that the district court properly had jurisdiction over this case under § 1337. The court stated: “The commerce power clearly is a significant source of federal power for the National Housing Act, which was largely designed to stimulate the building trades and increase employment, and to control various aspects of interstate commerce connected with mortgage financing.” 490 F.2d at 1365-66 (citations omitted). For the reasons discussed above, the same rationale applies equally to" }, { "docid": "13843743", "title": "", "text": "are merely possible” is crucial. Federal common law is simply not indispensable to the resolution of the “necessary” contract issue in this case. 28 U.S.C. § 1337 The plaintiff next seeks to invoke the jurisdiction of this court under 28 U.S.C. § 1337: The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce . It is submitted, correctly, that the Federal Housing Act was enacted pursuant to the commerce power. Davis v. Romney, 490 F.2d 1360, 1365-66 (3d Cir. 1974). This fact alone, however, is not sufficient to mandate the exercise of this court’s jurisdiction. In Davis v. Romney, supra, cited by the plaintiff here, the plaintiffs alleged that FHA officials violated a specific provision of the Act. Similarly, in Winningham v. United States Department of Housing and Urban Development, 512 F.2d 617, 621-22 (5th Cir. 1975), in which the Fifth Circuit found § 1337 jurisdiction, the plaintiff directly attacked the constitutionality of a section of the Housing and Urban Development Act of 19.65 but was unable to meet the jurisdictional amount required by § 1331. In this case, it is not alleged that the Secretary or the Administrator violated any provision of the Act, nor is it alleged that the Act or any portion of it is unconstitutional. This court believes the language of Burgess quoted supra to be equally applicable to the question of jurisdiction under 28 U.S.C. § 1337 and, accordingly, finds no jurisdiction under that section to hear this case. Mandamus Finally, the plaintiff asserts that this court has jurisdiction under 28 U.S.C. § 1361. This is plainly not so. In order for jurisdiction under the mandamus statute to lie, the plaintiff must show: “(1) that a public official has a plain duty to perform certain acts; (2) that the plaintiff has a plain right to have those acts performed; and (3) that there exists no other adequate remedy by which the plaintiff’s rights can be vindicated.” Cook v. Arentzen, 582 F.2d 870, 876 (4th Cir. 1978). The plaintiff in this case has not made" }, { "docid": "20342682", "title": "", "text": "City of Chicago, 401 F.Supp. 515, 517 (N.D.Ill.1975). Section 1337 provides that district courts have original jurisdiction over civil actions or proceedings arising un der any act of Congress regulating commerce; no amount in controversy is required. A number of federal courts have concluded that claims arising under the National Housing Acts are cognizable under this section. Winningham v. H.U.D., 512 F.2d 617, 621-22 (5th Cir. 1975); Davis v. Romney, 490 F.2d 1360 (3d Cir. 1974); Mandona v. Lynn, 357 F.Supp. 269 (D.C.Mo.1973). Contra, Potero Hill Community Action Committee v. Housing Authority, 410 F.2d 974 (9th Cir. 1969). This action arises under Sections 203 and 204 of the National Housing Act of 1934, 12 U.S.C.A. §§ 1709, 1710 (Supp.1975). The commerce clause has been held to be a significant source of federal power for the Act. Davis v. Romney, supra, at 1366-67; see United States v. Emory, 314 U.S. 423, 430, 62 S.Ct. 317, 86 L.Ed. 315 (1941). Therefore, jurisdiction over Count I of the complaint exists under 28 U.S.C. § 1337. Similarly, Count II of the complaint, which arises under the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (1970), is cognizable under Section 1337. Citizens for Clean Air, Inc. v. Corps of Engineers, 349 F.Supp.696 (S.D.N.Y.1972). An action brought on behalf of a class may be certified under Rule 23 if the plaintiffs satisfy the four requirements of Rule 23(a) and one of the three subsections of Rule 23(b). Rule 23(a) provides: (a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. Before determining whether the plaintiffs have satisfied these prerequisites, however, the class must be defined. The plaintiffs first" }, { "docid": "21997980", "title": "", "text": "on May 6th, during which time the Court heard testimony and received documentary evidence. During the course of the hearing the Court suggested that the preliminary injunction hearing be consolidated with the trial on the merits pursuant to Rule 65(a) (2) of the Federal Rules of Civil Procedure and to the entry of a final order based on the hearing. Counsel agreed to this procedure, therefore, this order will constitute the final adjudication of the merits of the case, subject to appeal. In view of the consolidation of the preliminary injunction with the trial on the merits and the resultant speedy resolution of the case, the defendants who filed a counterclaim have had insufficient time for discovery and counsel for these defendants withdraw the counterclaim in open Court without prejudice. The Court finds that plaintiff’s complaint raises three separate legal and factual issues. (1) Plaintiffs’ alleged denial of due process in not being given a hearing before HUD approved the rent increases, (2) judicial review of the substance of the rent increase, and (3) allegations that HUD’s regulations, 12 C.F.R. § 401.1 et seq. were not complied with fully. In addition, the Court finds that the jurisdictional grounds of the complaint merit discussion. I. JURISDICTION. Jurisdiction of this Court is predicated on various federal statutes, namely: (1) Cases arising out of the Constitution or laws of the United States where the matter in controversy exceeds $10,000 (28 U.S.C. § 1331); (2) actions arising out of the acts of Congress regulating commerce (28 U.S. C. § 1337); *(3) right of review under the Federal Administrative Procedure Act by a person aggrieved by agency action (5 U.S.C. § 702); (4) actions in the nature of mandamus to compel an officer or employee of the United States or agency thereof to perform a duty owed to plaintiff (28 U.S.C. § 1361). It is clear to the Court that it has jurisdiction under 28 U.S.C. § 1337. United States v. Emory, 314 U.S. 423, 62 S.Ct. 317, 86 L.Ed. 315 (1941), indicates that the purpose of the National Housing Act is to stimulate the" }, { "docid": "18863605", "title": "", "text": "consolidated with other housing statutes to form the Housing and Community Development Act of 1974. Pub.L. 93-383. One of the substantive amendments to the Housing Act of 1937, which retained its identity in the 1974 Act, was a shift in emphasis toward private development and management of housing for low income families. HUD recommended, and the Congress enacted, a statute which gives private developers the incentive for profit and risk of loss in low income housing. Should the Secretary so desire, the move toward stimulation of private construction may swallow most of the funding for an Act which originally envisioned federal aid to public housing agencies. 42 U.S.C. § 1437c(c) and § 1437f(b)(2). The only court to consider this precise issue has reached a contrary result. In Potrero Hill Community Action Comm. v. Housing Authority of City and County of San Francisco, 410 F.2d 974, 979 (9th Cir. 1969), the Ninth Circuit held that the Housing Act of 1937 was not based on the Commerce Clause power of Congress, but on the welfare authority. However, this decision was reached without any reported analysis, and has been criticized as unpersuasive. See Davis v. Romney, 490 F.2d 1360 (3rd Cir. 1974); Bloodworth v. Oxford Village Townhouses, Inc., 377 F.Supp. 709 (N.D.Ga. 1974). More compelling is the result reached by the Fifth Circuit in Winningham v. United States Dept. of Hous. & Urb. Dev., supra. Plaintiffs were a class of residents of a federally subsidized housing project who challenged the constitutionality of a federal statute authorizing rent supplements for tenants moving to a subsidized housing project from substandard housing but not for tenants who had not previously lived in substandard housing. The court found jurisdiction lay under § 1337 as a primary purpose of the rent subsidy program and was to encourage new construction. That is a primary purpose of § 1437, and this court so holds. Having cleared one hurdle, plaintiffs are faced with another: § 1337 does not of and in itself, create a cause of action. To create federal jurisdiction under this section, some federal right, be it constitutional, statutory," }, { "docid": "12766620", "title": "", "text": "generally United States v. Kay, 89 F.2d 19, 21 (2d Cir. 1937). . Accord, Bloodworth v. Oxford Village Townhouses, Inc., 377 F.Supp. 709, 714-15 (N.D.Ga.1974); Mandina v. Lynn, 357 F.Supp. 269, 276-77 (W.D.Mo.1973). Contra, Potrero Hill Community Action Committee v. Housing Authority, 410 F.2d 974, 978-79 (9th Cir. 1969), which Chief Judge Seitz, citing Imm v. Union Pacific R.R. Co., supra, declined to follow in Davis v. Romney, supra. . The Jones Act rests, inter alia, upon the admiralty provision in art. Ill, § 2 of the Constitution, which provides, in pertinent part: “The judicial Power shall extend * * * to all Cases of admiralty and maritime Jurisdiction * * 28 U.S.C. § 1333 provides: The district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled. (2) Any prize brought into the United States and all proceedings for the condemnation of property taken as prize. In Moore-McCormack, section 1337 jurisdiction was held to be present despite those constitutional and statutory admiralty provisions. . Accord, Bennett v. Butz, 386 F.Supp. 1059, 1063 (D.Minn.1974); Giguere v. Affleck, 370 F.Supp. 154, 156-57 (D.R.I.1974); Stewart v. Butz, 356 F.Supp. 1345, 1347 (W.D.Ky.1973). . The Burns opinion has been criticized in “Expanding Concepts of Federal Jurisdiction Over National Banks,” 59 Iowa L.Rev. 1030 (1974), which article is itself, however, criticized in Wright and Miller § 3571 at 478 n.18. . 28 U.S.C. § 1348 provides: The district courts shall have original jurisdiction of any civil action commenced by the United States, or by direction of any officer thereof, against any national banking association, any civil action to wind up the affairs of any such association, and any action by a banking association established in the district for which the court is held, under chapter 2 of Title 12, to enjoin the Comptroller of the Currency, or any receiver acting under his direction, as provided by such chapter. All national banking associations shall, for the purposes of" }, { "docid": "13843742", "title": "", "text": "of action” (Italics in opinion). It is often true that, “[A] mere incidental or collateral federal question may appear, or may lurk in the background of the record, but this is not a sufficient or adequate basis upon which federal jurisdiction may attach.” Simply stated, an action arises under federal law only if it “really and substantially involves a dispute or controversy respecting the validity, construction or effect of such a law, upon the determination of which the result depends.” In ascertaining whether there is a real federal issue upon “which the result depends”, the Courts have observed “the distinction between controversies that are basic and those that are collateral, between disputes that are necessary and those that are merely possible” and federal question jurisdiction attaches only “to cases where the plaintiff’s cause of action, the rule of substance under which he claims the right to have a remedy, is the product of federal law.” (Emphasis added.) (footnotes omitted). This is a case in which the “distinction between disputes that are necessary and those that are merely possible” is crucial. Federal common law is simply not indispensable to the resolution of the “necessary” contract issue in this case. 28 U.S.C. § 1337 The plaintiff next seeks to invoke the jurisdiction of this court under 28 U.S.C. § 1337: The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce . It is submitted, correctly, that the Federal Housing Act was enacted pursuant to the commerce power. Davis v. Romney, 490 F.2d 1360, 1365-66 (3d Cir. 1974). This fact alone, however, is not sufficient to mandate the exercise of this court’s jurisdiction. In Davis v. Romney, supra, cited by the plaintiff here, the plaintiffs alleged that FHA officials violated a specific provision of the Act. Similarly, in Winningham v. United States Department of Housing and Urban Development, 512 F.2d 617, 621-22 (5th Cir. 1975), in which the Fifth Circuit found § 1337 jurisdiction, the plaintiff directly attacked the constitutionality of a section of the Housing and Urban Development Act of 19.65" }, { "docid": "21881267", "title": "", "text": "was based on a different theory of liability, the Court believes that the Supreme Court completely rejected the notion that Congress intended to establish a duty of due care for the benefit of mortgagors such as plaintiffs. See Jackson v. Romney, 355 F.Supp. 737, 741-743 (D.D.C.1973); cf. Davis v. Romney, 490 F.2d 1360, 1371-1372 (3rd Cir. 1974). In the absence of such a duty, plaintiffs cannot recover damages under a negligence theory. IV. Mandamus and Injunctive Relief Relief in the nature of mandamus is not available in this action. 28 U.S.C. § 1361 (1970) provides: “The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or em ployee of the United States or any agency thereof to perform a duty owed to the plaintiff.” Before mandamus relief would be available, the Court would have to hold that the FHA owed plaintiffs the duty to perform a proper inspection and appraisal. Since we have held that such a duty does not exist, plaintiffs have failed to state a claim upon which mandamus relief could be granted. Injunctive relief also' is not available in this action. The difficulty in providing an injunction drawn so that, it will provide relief to plaintiffs has been recognized by the United States Court of Appeals for the Third Circuit in Davis v. Romney, 490 F.2d 1360, 1370 (3rd Cir. 1974). Assuming the facts alleged in the complaint to be true, plaintiffs may be entitled to secure administrative compliance with the National Housing Act and HUD-FHA regulations by injunction, but the injunction must be framed to remedy the harm to plaintiffs. The harm to plaintiffs in this instance cannot be remedied by injunction because it is complete — the contracts for insurance have already been issued. The Court has been wholly unable to conceive of an injunction, mandatory or prohibitory, that would be of the slightest aid to plaintiffs. Plaintiffs, therefore, have failed to state a claim upon which injunctive relief can be granted. V. Orders For the reasons stated, it is Ordered that plaintiffs’ motion to reconsider" }, { "docid": "20342681", "title": "", "text": "turning to the particular requirements of Rule 23(b) (2). The defendants contend that the court is without jurisdiction to hear this action because the plaintiffs do not assert that each member of the class, both named and unnamed, has sustained damages in excess of $10,000. 28 U.S.C. § 1331 (1970); see Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1974). In the October 28 memorandum decision there was a jurisdictional reference to Section 1331 and the plaintiffs’ generalized allegation that the amount in controversy exceeded $10,000, as well as 5 U.S.C. § 701 et seq. (1970). At the time of that decision, however, no challenge to the court’s jurisdiction had been raised by the defendants. The plaintiffs’ jurisdiction paragraph alleges jurisdiction under 28 U.S.C. §§ 1331, 1337, 5 U.S.C. § 701 et seq., and 12 U.S.C. § 1702. Jurisdiction is not present under Section 1702, which merely renders the defendants amenable to suit. Choy v. Farragut Gardens 1, Inc., 131 F.Supp. 609, 613 & n.5 (S.D.N.Y.1955); cf. Fox v. City of Chicago, 401 F.Supp. 515, 517 (N.D.Ill.1975). Section 1337 provides that district courts have original jurisdiction over civil actions or proceedings arising un der any act of Congress regulating commerce; no amount in controversy is required. A number of federal courts have concluded that claims arising under the National Housing Acts are cognizable under this section. Winningham v. H.U.D., 512 F.2d 617, 621-22 (5th Cir. 1975); Davis v. Romney, 490 F.2d 1360 (3d Cir. 1974); Mandona v. Lynn, 357 F.Supp. 269 (D.C.Mo.1973). Contra, Potero Hill Community Action Committee v. Housing Authority, 410 F.2d 974 (9th Cir. 1969). This action arises under Sections 203 and 204 of the National Housing Act of 1934, 12 U.S.C.A. §§ 1709, 1710 (Supp.1975). The commerce clause has been held to be a significant source of federal power for the Act. Davis v. Romney, supra, at 1366-67; see United States v. Emory, 314 U.S. 423, 430, 62 S.Ct. 317, 86 L.Ed. 315 (1941). Therefore, jurisdiction over Count I of the complaint exists under 28 U.S.C. § 1337. Similarly, Count II" }, { "docid": "18845537", "title": "", "text": "or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies 28 U.S.C. § 1337(a) (emphasis added). Plaintiff’s complaint plainly states that her right to relief is founded upon and is the product of the NHA’s Mortgage Assignment Program, 12 U.S.C. § 1715u(b), and HUD guidelines and settlement obligations that fill in the interstices of that program. Because courts have held that national housing legislation regulates commerce within the meaning of § 1337, the district courts have jurisdiction over actions like this one that arise under the NHA. See, e.g., Davis v. Romney, 490 F.2d 1360, 1365-66 (3d Cir.1974) (commerce power is a significant source of power for NHA, which was largely designed to stimulate the building trades, increase employment, and control aspects of interstate commerce connected with mortgage financing); accord Ellis v. United States Dep’t of Hous. and Urban Dev., 551 F.2d 13, 15-16 (3d Cir.1977); Griffin v. Harris, 480 F.Supp. 1072, 1078 (E.D.Pa.1979). Accordingly, § 1337 provides this court with subject matter jurisdiction over plaintiffs adversary action against HUD. Cf. Davis v. Ohio Barge Line, Inc., 697 F.2d 549, 552 (3d Cir.1983) (“we have ... overlooked a complaint’s reliance on jurisdictional statutes which are inapposite and instead independently ascertained whether there was any basis on which subject matter jurisdiction could be asserted”); Bachowski v. Brennan, 502 F.2d 79, 82 & n. 2 (3d Cir.1974), rev’d on other grounds, 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975) (failure of complaint specifically to cite § 1337 does not prevent court from considering it as a basis for jurisdiction). Finally, the court finds that plaintiffs averments invoke equitable rights that flow from HUD’s course of activities pursuant to the NHA’s Mortgage Assignment Program. Those rights arise under federal common law and fall within the federal question jurisdiction of 28 U.S.C. § 1331(a). Through the Mortgage Assignment Program, HUD attempts to realize the NHA’s goal of providing decent, affordable housing to all citizens. 42 U.S.C. § 1441. HUD can direct that lenders holding mortgages on HUD-insured loans assign those mortgages to HUD" }, { "docid": "5965779", "title": "", "text": "in United States v. Emory, 314 U.S. 423, 430, 62 S.Ct. 317, 321, 86 L.Ed. 315 (1941), that “[t]he plain objective of the Housing Act was to stimulate the building trades and to increase employment.” It should be noted that the Ninth Circuit Court of Appeals has reached a result contrary to the Third Circuit’s conclusion in Potrero Hill Community Action Committee v. Housing Authority of the City & County of San Francisco, 410 F.2d 974, 979 (9th Cir. 1969). However, the Potrero court gave no reasoning for its result, and we therefore decline to follow that case. Although counsel for plaintiffs have not asserted § 1337 as a grounds for subject matter jurisdiction, we are convinced that it is available if jurisdiction is wrongly grounded upon § 1331 and § 1361. See also, Mandina v. Lynn, 357 F.Supp. 269, 276 (W.D.Mo.1973). D. Preliminary Relief. The purpose of preliminary injunctive relief is to preserve the status quo and thus prevent irreparable harm until the respective rights of the parties can be ascertained during a trial on the merits. Exhibitors Poster Exchange, Inc. v. National Screen Service Corp., 441 F.2d 560, 561 (5th Cir. 1971). See also, Johnson v. Radford, 449 F.2d 115, 117 (5th Cir. 1971); J. Moore, Federal Practice, ff 65.04 [1] (1974). Four factors should be considered in determining whether or not preliminary injunctive relief is appropriate: (1) whether the plaintiff is likely to prevail on the merits ; (2) whether the plaintiff is in danger of suffering irreparable harm; (3) whether the potential harm to the defendant (s) from the issuance of the injunction outweighs the possible harm to the plaintiff if injunctive relief is denied; and (4) whether issuance of a preliminary injunction will serve the public interest. Di Giorgio v. Causey, 488 F.2d 527 (5th Cir. 1973); Blackshear Residents Organization v. Romney, 472 F.2d 1197 (5th Cir. 1973). See also, American Radio Ass’n v. Mobile S. S. Ass’n., 483 F.2d 1 (5th Cir. 1973). Consideration of what preliminary relief, if any, should be ordered pending final adjudication of this action has been hampered somewhat by" }, { "docid": "21997981", "title": "", "text": "that HUD’s regulations, 12 C.F.R. § 401.1 et seq. were not complied with fully. In addition, the Court finds that the jurisdictional grounds of the complaint merit discussion. I. JURISDICTION. Jurisdiction of this Court is predicated on various federal statutes, namely: (1) Cases arising out of the Constitution or laws of the United States where the matter in controversy exceeds $10,000 (28 U.S.C. § 1331); (2) actions arising out of the acts of Congress regulating commerce (28 U.S. C. § 1337); *(3) right of review under the Federal Administrative Procedure Act by a person aggrieved by agency action (5 U.S.C. § 702); (4) actions in the nature of mandamus to compel an officer or employee of the United States or agency thereof to perform a duty owed to plaintiff (28 U.S.C. § 1361). It is clear to the Court that it has jurisdiction under 28 U.S.C. § 1337. United States v. Emory, 314 U.S. 423, 62 S.Ct. 317, 86 L.Ed. 315 (1941), indicates that the purpose of the National Housing Act is to stimulate the building trades and to increase employment. Courts in other circuits considering questions similar to the issues involved in this action have found that jurisdiction is proper under § 1337. Davis v. Romney, 490 F.2d 1360 (3d Cir. 1974) ; Mandina v. Lynn, 357 F.Supp. 269 (W.D.Mo.1973). In addition, Judge Freeman of this District has indicated in \\ dictum that § 1337 would be proper grounds for jurisdiction in an action under § 236 of the National Housing Act. Bloodworth v. Oxford Village Townhouses, Inc., 377 F.Supp. 709 (N.D.Ga.1974). Any doubt in’ this matter appears to have been put to rest in this circuit by a recent decision of the Fifth Circuit Court of Appeals. Winningham v. United States Department of Housing and Urban Development, 512 F.2d 617 (5th Cir. 1975). While the holding in Winningham pertains to § 101 of the National Housing Act, the Fifth Circuit panel states that the reasoning of Davis v. Romney, supra, is applicable to actions arising under § 236. The Court does not find that it is necessary to" }, { "docid": "18845536", "title": "", "text": "against Lomas. The Court of Appeals for this Circuit has stated that an adversary proceeding is “related to” a bankruptcy case if the proceeding’s outcome “could alter the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankrupt estate.” Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir.1984), quoted in Bobroff v. Continental Bank, 766 F.2d 797, 802 (3d Cir.1985); see also In re Fleet, 53 B.R. 833, 838 (Bankr.E.D.Pa.1985). Section 1334(b) grants jurisdiction in adversary proceedings “arising in or related to cases under title 11.” Because there is an agency relationship between HUD and Lomas, and because any relief that this court orders will be HUD’s responsibility and will impact upon plaintiff’s Chapter 13 plan, the instant adversary proceeding is “related to” the bankruptcy case and the court has jurisdiction under § 1334(b). Additionally, the court has jurisdiction under 28 U.S.C. § 1337(a). That section provides: The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies 28 U.S.C. § 1337(a) (emphasis added). Plaintiff’s complaint plainly states that her right to relief is founded upon and is the product of the NHA’s Mortgage Assignment Program, 12 U.S.C. § 1715u(b), and HUD guidelines and settlement obligations that fill in the interstices of that program. Because courts have held that national housing legislation regulates commerce within the meaning of § 1337, the district courts have jurisdiction over actions like this one that arise under the NHA. See, e.g., Davis v. Romney, 490 F.2d 1360, 1365-66 (3d Cir.1974) (commerce power is a significant source of power for NHA, which was largely designed to stimulate the building trades, increase employment, and control aspects of interstate commerce connected with mortgage financing); accord Ellis v. United States Dep’t of Hous. and Urban Dev., 551 F.2d 13, 15-16 (3d Cir.1977); Griffin v. Harris, 480 F.Supp. 1072, 1078 (E.D.Pa.1979). Accordingly, § 1337 provides this court with subject matter jurisdiction over plaintiffs" }, { "docid": "21997982", "title": "", "text": "building trades and to increase employment. Courts in other circuits considering questions similar to the issues involved in this action have found that jurisdiction is proper under § 1337. Davis v. Romney, 490 F.2d 1360 (3d Cir. 1974) ; Mandina v. Lynn, 357 F.Supp. 269 (W.D.Mo.1973). In addition, Judge Freeman of this District has indicated in \\ dictum that § 1337 would be proper grounds for jurisdiction in an action under § 236 of the National Housing Act. Bloodworth v. Oxford Village Townhouses, Inc., 377 F.Supp. 709 (N.D.Ga.1974). Any doubt in’ this matter appears to have been put to rest in this circuit by a recent decision of the Fifth Circuit Court of Appeals. Winningham v. United States Department of Housing and Urban Development, 512 F.2d 617 (5th Cir. 1975). While the holding in Winningham pertains to § 101 of the National Housing Act, the Fifth Circuit panel states that the reasoning of Davis v. Romney, supra, is applicable to actions arising under § 236. The Court does not find that it is necessary to rule upon the other jurisdictional grounds. It is noted, however, that in Winningham the Fifth Circuit found that the trial judge had not abused his discretion in rejecting plaintiff’s allegations of jurisdictional .amount under § 1331. The Court also conceded that the Fifth Circuit rule with respect to the Administrative Procedure Act as an independent basis of jurisdiction is not clear. And although the Winningham Court rejected jurisdiction under § 1361, there was no claim in Winningham that defendants did not comply with the applicable statutes and regulations as there is in the instant case. II. FACTS. The Court makes the following findings of fact as derived from the testimony of witnesses, documentary evidence, and stipulations entered into by counsel in open Court. 1. McLendon Gardens is a ninety unit apartment project located in the City of Atlanta, DeKalb County, Georgia, within this District and owned by McLendon Gardens, Ltd., a Georgia limited partnership whose general partners are Housing Systems, Inc. and Interfaith, Inc. There are a number of limited partner investors who have an" }, { "docid": "6030342", "title": "", "text": "ROSENN, Circuit Judge: Mrs. Winningham, a resident of a “section 236” housing project in Savannah, Georgia, applied under the Housing and Urban Development Act of 1965 for financial assistance to supplement her rental payments. Section 101 of that Act authorizes rent supplements for tenants moving to a “section 236” project from substandard housing; it does not authorize rent supplements for those, such as Mrs. Winningham, who did not move into a project from substandard housing. Mrs. Winningham’s application therefore was denied. Challenging the statute’s constitutionality, she instituted a class action for a declaratory judgment in the United States District Court for the Southern District of Georgia. After determining that it had subject matter jurisdiction, the district court upheld the statute. We affirm. I. Subject Matter Jurisdiction. Mrs. Winningham alleged subject matter jurisdiction in the district court under various statutory provisions. 28 U.S.C. § 1331(a) (1970) (federal question); id. § 1337 (action arising under an act of Congress regulating commerce); id. § 1361 (action in the nature of mandamus); 5 U.S.C. § 701 et seq. (1970) (review under Administrative Procedure Act). The district court held that, although sections 1331(a) and 1337 did not provide a basis for jurisdiction, section 1361 did. The district court did not rule on the question of jurisdiction under the Administrative Procedure Act. Win ningham v. United States Dep’t of Housing & Urban Development, 371 F.Supp. 1140 (S.D.Ga.1974). We agree that jurisdiction could not have been exercised under the federal question statute. Nor are we persuaded that the district court had subject matter jurisdiction under section 1361. We conclude, however, that section 1337 did constitute an appropriate basis for jurisdiction. A. Absence of Jurisdiction Under Section 1361. The legislative history of section 1361 reveals that the statute’s construction turns upon traditional mandamus law. As an extraordinary remedy, mandamus is reserved for extraordinary situations. Will v. United States, 389 U.S. 90, 107, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967) (common law writ of mandamus issued by court of appeals vacated); Carter v. Seamans, 411 F.2d 767, 773 (5th Cir. 1969), cert. denied, 397 U.S. 941, 90 5. Ct." }, { "docid": "5430031", "title": "", "text": "is not an act of Congress providing for protection of civil rights. He further contends that there is no jurisdiction under 28 U.S.C. § 1331 because the Fifth Amendment does not contain an equal protection clause, because the federal claim is insubstantial, and because plaintiffs may not satisfy the $10,000.00 jurisdictional amount. Finally defendant contends that jurisdiction may not be asserted under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., since that act is not a grant of federal jurisdiction, and that jurisdiction under 28 U.S.C. § 1861 is also improper, since, “[cjhallenges to H.E. W.’s interpretation of the Social Security Act have not been found to be actions in the nature of mandamus . . . .” Of course, 28 U.S.C. § 1331 provides a recognized source for federal jurisdiction in Social Security Act cases, but federal question cases require a $10,-000.00 jurisdictional amount. See Weinberger v. Wiesenfeld, supra at 641, 95 S.Ct. at 1230. See also Winningham v. United States Department of Housing and Urban Development, 512 F.2d 617, 620 n. 6 (5th Cir. 1975). Plaintiffs have introduced no evidence whatsoever regarding this matter, and otherwise appear to have abandoned § 1331 as a viable jurisdictional basis for suit. In fact, plaintiffs do not seek recovery of retroactive AFDC benefits, probably in recognition that recovery of such benefits would be barred by sovereign immunity concepts. Adams v. Harden, 493 F.2d 21 (5th Cir. 1974). On the other hand, plaintiffs strenuously argue that jurisdiction is proper in this case under concepts of pendent jurisdiction, under 28 U.S.C. § 1361, under 28 U.S.C. § 1337 and under 5 U.S.C. § 701 et seq. With respect to § 1361 jurisdiction and § 1337 jurisdiction, both parties have briefed and reached varying conclusions regarding the effect of the ruling in the Winningham case on this matter. Although plaintiffs’ arguments are thorough and well-reasoned, this court has concluded that the Winningham ruling does not constitute a “narrow exception” to the applicability of mandamus type relief in actions involving constitutional claims. On the contrary, the Winningham ruling indicates that the federal courts" }, { "docid": "5965778", "title": "", "text": "to the action as indispensible parties, pursuant to Rule 19(a), Fed.R.Civ.P. (see, Langevin v. Chenango Court, Inc., 447 F.2d 296, 300 (2d Cir. 1971) ). Finally, amicus has raised the argument that subject matter jurisdiction may be asserted through 28 U.S.C. § 1337, on the grounds that this action arises under an act of Congress regulating commerce. This approach was taken by the Third Circuit Court of Appeals in Davis v. Romney, 490 F.2d 1360 (3rd Cir. 1974), an action in which plaintiffs asserted rights secured by Sections 221(d)(2) and 235 of the National Housing Act (12 U.S.C. § 1715i(d)(2) and § 1715z). The Court stated as follows : The commerce power clearly is a significant source of federal power for the National Housing Act, which was largely designed to stimulate the building trades and increase employment . . . and to control various aspects of interstate commerce connected with mbrtgage financing. 490 F.2d at 1365-1366. The Court drew on several sources to reach this conclusion, including the recognition by the U. S. Supreme Court in United States v. Emory, 314 U.S. 423, 430, 62 S.Ct. 317, 321, 86 L.Ed. 315 (1941), that “[t]he plain objective of the Housing Act was to stimulate the building trades and to increase employment.” It should be noted that the Ninth Circuit Court of Appeals has reached a result contrary to the Third Circuit’s conclusion in Potrero Hill Community Action Committee v. Housing Authority of the City & County of San Francisco, 410 F.2d 974, 979 (9th Cir. 1969). However, the Potrero court gave no reasoning for its result, and we therefore decline to follow that case. Although counsel for plaintiffs have not asserted § 1337 as a grounds for subject matter jurisdiction, we are convinced that it is available if jurisdiction is wrongly grounded upon § 1331 and § 1361. See also, Mandina v. Lynn, 357 F.Supp. 269, 276 (W.D.Mo.1973). D. Preliminary Relief. The purpose of preliminary injunctive relief is to preserve the status quo and thus prevent irreparable harm until the respective rights of the parties can be ascertained during a trial" }, { "docid": "18863606", "title": "", "text": "this decision was reached without any reported analysis, and has been criticized as unpersuasive. See Davis v. Romney, 490 F.2d 1360 (3rd Cir. 1974); Bloodworth v. Oxford Village Townhouses, Inc., 377 F.Supp. 709 (N.D.Ga. 1974). More compelling is the result reached by the Fifth Circuit in Winningham v. United States Dept. of Hous. & Urb. Dev., supra. Plaintiffs were a class of residents of a federally subsidized housing project who challenged the constitutionality of a federal statute authorizing rent supplements for tenants moving to a subsidized housing project from substandard housing but not for tenants who had not previously lived in substandard housing. The court found jurisdiction lay under § 1337 as a primary purpose of the rent subsidy program and was to encourage new construction. That is a primary purpose of § 1437, and this court so holds. Having cleared one hurdle, plaintiffs are faced with another: § 1337 does not of and in itself, create a cause of action. To create federal jurisdiction under this section, some federal right, be it constitutional, statutory, or “federal common law” must exist, independent of general rights emanating from the power of Congress to regulate commerce. Gen’l Comm, of Adj. of Broth, of Loc. Eng. for Mo.-Kan.-Tex. R. Co. v. Mo.-Kan.-Tex. R. Co., 320 U.S. 323, 64 S.Ct. 146, 88 L.Ed. 76 (1943). Defendants’ 12(b)(6) motion to dismiss for failure to state a claim challenges the existence of a private right of action under 42 U.S.C. § 1437 to support § 1337 jurisdiction. No private cause of action is explicitly granted in the 1937 Housing Act, hence the question is whether one can be implied from the statute. Whether a statute creates an implicit private cause of action requires a determination of the intent of Congress. Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979); Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). Although Congressional intent has always been the ultimate test, the Supreme Court has recently changed the scope and emphasis of the analysis. Since 1975, the" } ]

[ { "docid": "22734278", "title": "", "text": "of other States.- This court has heretofore said that inter-state transportation of passengers is beyond'the reach of a State legislature.. And if, as we have held, State taxation of persons passing from one State to another, or a State tax upon inter-state transportation of passengers, is prohibited by the Constitution because a burden upon it,- a fortiori, if \"possible, is a State tax upon the carriage of. merchandise from State to. State. Transportation is' essential to commerce, or rather it is commefee itself; and every obstacle .to it, or burden laid upon.it by legislative authority, is regulation. Case of the State Freight Tax, 15 Wall. 232; Ward v. Maryland, 12 id. 418; Welton v. The State of Missouri, 91 U. S. 275; Henderson et al. v. Mayor of the City of New York et al., 92 id. 259; Chy Lung v. Freeman et al., id. 275. The two latter of-these cases refer to obstructions against the admission of persons into a State, but the principles asserted are equally applicable to all subjects of commerce. We are thus brought to the question whether, the Missouri statute is a lawful exercise of the police power of the State. We admit that the-deposit in Congress of the powér to regulate foreign commerce and commerce among the States was not a surrender .of. that which may properly be denominated police power. What that power is, it is difficult to define with sharp precision. It is generally said to extend to making regulations promotive of domestic order, morals, Health, and safely. As was said in Thorp v. The Rutland & Burlington Railroad Co., 27 Vt. 149, “it extends to the protection of. the lives, limbs-,' health, comfort, and quiet of all persons, and -the protec-. tion of all property within the State. According .to the maxim, sic utere tuo ut alienum non Icedas, which, being of universal application, it must, of course, be within the range of. legislative action to define the mode and manner in which every one may so use his own as not to injuré- others.”- It was further said,that, by the" } ]

[ { "docid": "6238321", "title": "", "text": "exercise any or all of its powers may prevent or rmreasouably burden interstate commerce within its borders in any sound article thereof. Henderson v. Mayor of New York, 92 U. S. 259, 271-272, 23 L. Ed. 543; Railroad Company v. Husen, 95 U. S. 465, 471, 473, 24 L. Ed. 527; Bowman v. Chicago, etc., Ry. Co., 125 U. S. 465, 474, 475, 479, 480-481, 484-485, 488-489, 497, 507-508, 8 Sup. Ct. 689, 1062, 31 L. Ed. 700; Mugler v. Kansas, 123 U. S. 623-624, 8 Sup. Ct. 273, 31 L. Ed. 205. No state by the exercise of, or by tlie refusal to exercise, any or all of its powers may substantially discriminate against or directly regulate interstate commerce or the right to carry it on. Pullman Company v. State of Kansas, 216 U. S. 56, 65, 30 Sup. Ct. 232, 54 L. Ed. 378; Darnell & Son v. Memphis, 208 U. S. 113, 120-124, 28 Sup. Ct. 247, 52 L. Ed. 413; Minnesota v. Barber, 136 U. S. 313, 10 Sup. Ct. 862, 34 L. Ed. 455; Brimmer v. Rebman, 138 U. S. 78, 11 Sup. Ct. 213, 34 L. Ed. 862; Voight v. Wright, 141 U. S. 62, 11 Sup. Ct. 855. 35 L. Ed. 638. The power to regulate commerce among the states was carved out of the general sovereign power when the national government was formed and granted by the people by means of the Constitution to the Congress of the United States. Article 1, § 8. That grant is exclusive. The nation may exercise the power thus given to its utmost extent, and no state may lawfully restrict or infringe this grant or the plenary exertion of this power, for they are paramount to'all the powers of the state, and they inhere in the supreme law of the land. Interstate commerce in natural gas including therein its transportation among the states by pipe line is a subject national in its character and susceptible of regulation by uniform rules. The silence or inaction of Congress relative to such a subject is a conclusive indication that" }, { "docid": "22816739", "title": "", "text": "187 U. S. 622, 629, 23 Sup. Ct. 229, 47 L. Ed. 336; Wagner v. Meakin, 92 Fed. 76, 33 C. C. A. 577, 581, 584; Allen v. Tyson-Jones. Buggy Co., 91 Tex. 22, 40 S. W. 393, 714; Chattanooga R. & C. R. Co. v. Evans, 66 Fed. 809, 814, 14 C. C. A. 116; Gunn v. White Sewing Machine Co.. 57 Ark. 24, 20 S. W. 591, 18 L. R. A. 306, 38 Am. St. Rep. 223; Keating Implement & Machine Co. v. Favorite Carriage Co., 12 Tex. Civ. App. 666, 35 S. W. 417. The decision of the Supreme Court of Kentucky to the contrary in Commonwealth v. Parlin & Orendorff Co., 118 Ky. 168, 80 S. W. 791, has been thoughtfully read, but it does not commend itself to our judgment. As the contracts were transactions of interstate commerce, any prohibition or obstruction to the making of them, or to the enforcement of them in the national courts, by the legislation or action of the state of Colorado, was beyond the power of the state and futile. Where the Congress has passed no law regulating interstate commerce in well-recognized articles of commerce, that fact is conclusive evidence that it intends such commerce to be free, and any law of a state which prohibits or restrains it at all is unconstitutional and void. Caldwell v. North Carolina, 187 U. S. 622, 629, 23 Sup. Ct. 229, 47 L. Ed. 336; Brown v. Houston, 114 U. S. 622, 631, 5 Sup. Ct. 1091, 29 L. Ed. 257; Bowerman v. Rogers, 125 U. S. 585, 587, 8 Sup. Ct. 986, 31 L. Ed. 815; Walling v. Michigan, 116 U. S. 455, 456, 6 Sup. Ct. 454, 29 L. Ed. 691; Welton v. The State of Missouri, 91 U. S. 275, 282, 23 L. Ed. 347; State Freight Tax, 15 Wall. 233, 21 L. Ed. 146; Brennan v. Titusville, 153 U. S. 289, 302, 14 Sup. Ct. 829, 38 L. Ed. 719; Robbins v. Shelby Comity Taxing District, 120 U. S. 489, 493, 7 Sup. Ct. 592, 30 L. Ed." }, { "docid": "22702852", "title": "", "text": "independent power • in all. cases but three: First, where the power was lodged exclusively in the federal constitution; second, where it was given to the United States and prohibited to the States;, third, where, from the nature and subjects of the power, it must be necessarily exercised by the national government .exclusively. But it is easy to see that Congress may assert • an authority under on¿ of the granted powers, which would , exclude the exercise by the States upon the same subject of '• a different but similar power, between which and .that, posf sessed by the general government no inherent repugnancy existed. Whenever, however, a particular power of the general government is one which must necessarily be exercised by it, and Congress remains silent, this is not only not a concession that' the powers reserved by the States may be exerted as if the specific power had not been elsewhere reposed, but, on the contrary, the only legitimate conclusion is that the general government intended that power should not be affirmatively . exercised, and the action of. the States cannot be permitted to. effect that which would be incompatible with such intention.'. Hence, inasmuch as interstate commerce, consisting in-, the transportation, purchase, sale and exchange of commodities, is national in its character, and must be governed by a uniform system,' so long as Congress does not pass any law to regulate it, .'or allowing the States so to do, it thereby indicates its will, - ,tnat such commerce shall be free and untrammelled. County of Mobile Kimball, 102 U. S. 691; Brown v. Houston, 114 U. S. 622, 631; Wabash, St. Louis &c. Railway v. Illinois, 118 U. S. 557; Robbins v. Shelby Taxing District, 120 U. S. 489, 493. That ardent spirits, distilled liquors, ale and beer are sublets of exchange, barter and traffic, like any other commodity in which a right of traffic exists, and are so recognized by the usages of the commercial world, the laws of Congress and the decisions of courts, is not denied. Being thus articles of commerce, can a.State," }, { "docid": "9625012", "title": "", "text": "the state where produced or manufactured, prior to the commencement of the actual transfer, or transmission thereof to another state, constitutes that interstate commerce which comes within the regulating power of Congress, and, further, that after the termination of the transportation of commodities or articles of traffic from one state to another, and the mingling or merging thereof in the general mass of property in the state of destination, the sale, distribution, and consumption thereof in the latter state forms no part of interstate commerce. Pensacola Tel. Co. v. Western Union Tel. Co., 96 U. S. 1 [24 L. Ed. 708]; Brown v. Houston, 114 U. S. 622, 5 Sup. Ct. 1091 [29 L. Ed. 257]; Coe v. Errol, 116 U. S. 517-520, 6 Sup. Ct. 475 [29 L. Ed. 715]; Robbins v. Taxing Dist., 120 U. S. 497, 7 Sup. Ct. 592 [30 L. Ed. 694]; and Kidd v. Pearson, 128 U. S. 1, 9 Sup. Ct. 6 [32 L. Ed. 346], In the latter case the Supreme Court pointed out the distinction between commerce and the subjects thereof, and held -that the manufacture of distilled spirits, even though they were intended for export to other states, was not commerce, falling within the regulating powers of Congress.” Imagination, if not experience, can suggest that persons, partnerships, and corporations may be engaged in interstate commerce by the transportation of merchandise solely by water; that their activities may give them their income from lighterage; or they may be engaged in the sole business of forwarding goods, with no interest in the ves- seis or wagons on which they are transported. The foregoing are. merely illustrations of activities which may perhaps be within the scope of the powers granted to the commission by the act as found in the fifth section thereof. Imagination, however, cannot suggest such an extension of constitutional limitation as may justify the investigation undertaken by the commission in this case. Indeed, so far as the matter has been brought to the attention of the court, no such assertion of power has ever been made to the courts. Investigation" }, { "docid": "14578680", "title": "", "text": "not, the commission was without jurisdiction. The claim that they were engaged in interstate commerce rests wholly on the fact that the commodities in which they deal are in large part transported into Virginia from other states in which they are procured. But this transportation ends when the goods reach their destination and are placed in petitioners’ warehouses in Norfolk and Newport News. They are then incorporated in the general stock of merchandise there held for sale, and become subject, so far as now concerns us, to the exclusive jurisdiction of the state of Virginia. Their subsequent sale and delivery within that state, with which alone the condemned practices are connected, is in no sense interstate commerce. In short, it is quite beyond doubt that the jurisdiction of the commission over the matter in hand cannot be supported by the prior, hut independent and completed transportation of the goods, or some part of them, from another slate. Brown v. Houston, 114 U. S. 622, 5 Sup. Ct. 1091, 29 L. Ed. 257; Robbins v. Taxing District, 120 U. S. 489, 497, 7 Sup. Ct. 592, 30 L. Ed. 694; Wagner v. Covington, 251 U. S. 95, 40 Sup. Ct. 93, 64 L. Ed. 157; American Harrow Co. v. Shaffer (C. C.) 68 Fed. 750; Ward Baking Co. v. Federal Trade Commission (C. C. A.) 264 Fed 330, directly in point; Roselle v. Commonwealth, 110 Va. 235, 65 S. E. 526. Were the petitioners engaged in foreign commerce? Their business is simply this: From stocks held in their storehouses in Virginia they sell and deliver supplies to ships lying in Hampton Roads, within the territorial limits of Virginia; that is, in waters under the jurisdiction of that state. The Abby Dodge, 223 U. S. 166, 32 Sup. Ct. 310, 56 L. Ed. 390. Their dealings in all cases are carried on and concluded in the state of Virginia. True, the supplies may be used by the ships—doubtless are used for the most part—-in navigating the high seas, but with that use or other use the petitioners have nothing to do. Their" }, { "docid": "22707499", "title": "", "text": "of New York, 92 U. S. 259, 272; Railroad, Co. v. Husen, 95 U. S. 465, 469.; Mobile v. Kimball, 102 U. S. 691, 697; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 203; Wabash, &c., Railway Co. v. Illinois, 118 U. S. 557. 2. Another established doctrine of this court is, that where the power of Congress to regulate is exclusive the failure of Congress to make express regulations indicates, its will that the subject shall he left free from any restrictions or impositions; and any regulation of the subject by the states, .except in matters of local concern only, as hereafter mentioned, is repugnant to such freedom. This was held by Mr. Justice Johnson in Gibbons v. Ogden, 9 Wheat. 1, 222, by Mr. Justice Grier in the Passenger Cases, 7 How. 283, 462, and has.been affirmed in subsequent cases. State Freight Tax Cases, 15 Wall. 232, 279;. Railroad Co. v. Husen, 95 U. S. 465, 469.; Welton v. Missouri, 91 U. S. 275, 282; Mobile v. Kimball, 102 U. S. 691, 697; Brown v. Houston, 114 U. S, 622, 631; Walking v. Michigan, 116 U. S. 446, 455; Pickard v. Pullman Southern Car Co., 117 U. S. 34; Wabash, &c., Railway Co. v. Illiniois, 118 U. S. 557. 3. It is also an established principle, as already indicated, that the only way in which commerce between the states can ■ be legitimately affected by state laws, is when, by virtue of its police power, and its jurisdiction over persons, and property within its limits, a state provides-for the security of the lives, limbs, health, and comfort of'persons and the protection of property; • or when it does those things which may otherwise incidentally affect commerce, such as .the establishment and ■ regulation of highways, canals, railroads, wharves, ferries, and other commercial facilities; the passage of inspection laws to secure the due quality and measure of' products and, commodities ; the passage of laws to regulate or restrict the sale of articles deemed injurious to the health or morals of the com- • munity; the imposition of" }, { "docid": "6238322", "title": "", "text": "34 L. Ed. 455; Brimmer v. Rebman, 138 U. S. 78, 11 Sup. Ct. 213, 34 L. Ed. 862; Voight v. Wright, 141 U. S. 62, 11 Sup. Ct. 855. 35 L. Ed. 638. The power to regulate commerce among the states was carved out of the general sovereign power when the national government was formed and granted by the people by means of the Constitution to the Congress of the United States. Article 1, § 8. That grant is exclusive. The nation may exercise the power thus given to its utmost extent, and no state may lawfully restrict or infringe this grant or the plenary exertion of this power, for they are paramount to'all the powers of the state, and they inhere in the supreme law of the land. Interstate commerce in natural gas including therein its transportation among the states by pipe line is a subject national in its character and susceptible of regulation by uniform rules. The silence or inaction of Congress relative to such a subject is a conclusive indication that it intends that interstate commerce therein shall be free, and any law or act of a state or of its officers which prohibits it or substantially restrains its freedom is violative of the Constitution and void. Welton v. State of Missouri, 91 U. S. 275, 282, 23 L. Ed. 347; Brown v. Houston, 114 U. S. 622, 631, 5 Sup. Ct. 1091, 29 L. Ed. 257; Walling v. Michigan, 116 U. S. 446, 455-456, 6 Sup. Ct. 454, 29 L. Ed. 691; Case of the State Freight Tax, 15 Wall. 232, 21 L. Ed. 146. It may be that, if the state had granted to specified common carriers the privilege of piping natural gas in interstate commerce across-its highways and had withheld that privilege from the complainant and others, the complainant could not have maintained his right to lay and operate a pipe line across these highways. But against the complete prevention of every one from conducting in interstate commerce this natural gas which the state and the defendants are endeavoring to enforce by preventing" }, { "docid": "22707500", "title": "", "text": "697; Brown v. Houston, 114 U. S, 622, 631; Walking v. Michigan, 116 U. S. 446, 455; Pickard v. Pullman Southern Car Co., 117 U. S. 34; Wabash, &c., Railway Co. v. Illiniois, 118 U. S. 557. 3. It is also an established principle, as already indicated, that the only way in which commerce between the states can ■ be legitimately affected by state laws, is when, by virtue of its police power, and its jurisdiction over persons, and property within its limits, a state provides-for the security of the lives, limbs, health, and comfort of'persons and the protection of property; • or when it does those things which may otherwise incidentally affect commerce, such as .the establishment and ■ regulation of highways, canals, railroads, wharves, ferries, and other commercial facilities; the passage of inspection laws to secure the due quality and measure of' products and, commodities ; the passage of laws to regulate or restrict the sale of articles deemed injurious to the health or morals of the com- • munity; the imposition of taxes upon persons residing within ' the state or belonging to its population, and upon avocations and employments pursued therein, not directly connected with foreign or interstate commerce or with some other employment or business exercised under authority of the Constitution .and laws of the United States; and the imposition of taxes upon all property within the state, mingled with and forming part of the great mass of property therein. But in making such internal regulations a state cannot impose taxes rqaon persons passing through the state, or doming into it merely for a temporary purpose, especially if connected With interstate or foreign commerce; nor can it impose such taxes.upon property imported into the state from abroad, or' from another state, and not yet become part of the common mass of property therein ; and no discrimination can be made, by any such regulations, adversely to the persons or property of' other states; and no- regulations can be made directly affecting interstate commerce. Any taxation or regulation of the latter character would be an-unauthorized interference" }, { "docid": "22470793", "title": "", "text": "prescribe any specific rules to govern interstate commerce, does not affect the question. Its inaction on this subject, when considered with reference to its legislation with respect to foreign commerce, is equivalent to a declaration that interstate commerce shall be free and untrammeled.” In Robbins v. Shelby Taxing District, 120 U. S. 489, 493, Mr. Justice Bradley summed up the matter in these words and with these citations: “ Another established doctrine of this court is, that where the power of Congress to regulate is exclusive the failure of Congress to make express regulations indicates its will that the subject shall be left free from any restrictions or impositions; and any regulation of-the subject by the States, except in matters of local concern only, as hereafter mentioned, is repugnant to such freedom. This was held by Mr. Justice Johnson in Gibbons v. Ogden, 9 Wheat. 1, 222; by Mr. Justice Grier in The Passenger Cases, 7 How. 283, 462; and has been affirmed in subsequent cases. State Freight Tax Cases, 15 Wall. 232, 279; Railroad Co. v. Husen, 95 U. S. 465, 469; Welton v. Missouri, 91 U. S. 275, 282; Mobile v. Kimball, 102 U. S. 691, 697; Brown v. Houston, 114 U. S. 622, 631; Walling v. Michigan, 116 U. S. 446, 455; Pickard v. Pullman Southern Car Co., 117 U. S. 34; Wabash &c. Ry. Co. v. Illinois, 118 U. S. 557.” See also Bowman v. Chicago & Northwestern Ry. Co., 125 U. S. 465; Leisy v. Hardin, supra; Covington &c. Bridge Co. v. Kentucky, 154 U. S. 204. In this case the words of Mr. Justice Brown were, (page 212): “ But wherever such laws, instead of being of a local nature and not affecting interstate commerce but incidentally, are national in their character, the non-action of Congress indicates its will that such commerce shall be free and untrammeled.” It is true there are many cases in this court in which have been sustained acts of a State which do in a measure affect interstate commerce, but the thought underlying those cases has been that the" }, { "docid": "22252047", "title": "", "text": "the mingling or merging thereof in the general mass of property in the state of destination, the sale, distribution, and consumption thereof in the latter state forms-no part of interstate commerce. Pensacola Tel. Co. v. Western Union Tel. Co., 96 U. S. 1; Brown v. Houston, 114 U. S. 622, 5 Sup. Ct. Rep. 1091; Coe v. Errol, 116 U. S. 517-520, 6 Sup. Ct. Rep. 475; Robbing v. Taxing Dist., 120 U. S. 497, 7 Sup. Ct. Rep. 592; and Kidd v. Pearson, 128 U. S. 1, 9 Sup. Ct. Rep. 6. In the latter case the supreme court pointed out the distinction between commerce and the subjects thereof, and held that the manufacture of distilled spirits, even though they were intended for export to other states, was not commerce, falling within the regulating powers of congress. Stripping the indictment of its verbiage,—its general recitals and conclusions of law,—does either count thereof charge any real offense against the United States over which the district court of Massachusetts has jurisdiction? The specific offense charged in the first count is that the defendants, under the form and guise of the Distilling & Cattle Feeding Company, sold on October 3, 1890, to Mills and Gaffield, copartners under the name of D. T. Mills & Co., a certain quantity of distilled products then in the state of Illinois; that, by reason of said Distilling & Cattle Feeding Company’s controlling the manufacture and sale of 75 per cent, of all such products in the United States, they fixed the price at which said purchasers should and did sell said alcohol for use in Massachusetts, or for transportation into any other state, “and did compel said Mills and Gaffield, as copartners, to sell said alcohol at no less price than that fixed” by them. It is not alleged how said Boston purchasers were “compelled” to sell at the prices fixed by the defendants, nor how, or under what arrangement, the defendants fixed the price at which the alcohol should be sold in Massachusetts, or for transportation therefrom. Was it one of the provisions of the" }, { "docid": "6238323", "title": "", "text": "it intends that interstate commerce therein shall be free, and any law or act of a state or of its officers which prohibits it or substantially restrains its freedom is violative of the Constitution and void. Welton v. State of Missouri, 91 U. S. 275, 282, 23 L. Ed. 347; Brown v. Houston, 114 U. S. 622, 631, 5 Sup. Ct. 1091, 29 L. Ed. 257; Walling v. Michigan, 116 U. S. 446, 455-456, 6 Sup. Ct. 454, 29 L. Ed. 691; Case of the State Freight Tax, 15 Wall. 232, 21 L. Ed. 146. It may be that, if the state had granted to specified common carriers the privilege of piping natural gas in interstate commerce across-its highways and had withheld that privilege from the complainant and others, the complainant could not have maintained his right to lay and operate a pipe line across these highways. But against the complete prevention of every one from conducting in interstate commerce this natural gas which the state and the defendants are endeavoring to enforce by preventing the laying and operation of any pipe lines to transport it the commercial clause of the Constitution is an ample franchise to the complainant to conduct that commerce and to use the indispensable means so to do, the pipes across the highways of the state of Oklahoma. No state may by means of its police power, or its proprietary power, over highways or by means of any of its other powers, erect and maintain impassable barriers against interstate commerce along its borders or through its body in the face of the grant to the nation of the power to regulate that commerce; for all the powers of the state are subordinate to this power of the nation and to its will that such commerce shall be free. Illustrations of this proposition are not rare. In St. Louis v. Western Union Telegraph Co., 148 U. S. 92, 100, 101, 105, 13 Sup. Ct. 485, 37 L. Ed. 380, a case much cited by counsel for the defendants, the company had a congressional license to construct and" }, { "docid": "22252046", "title": "", "text": "the character of the commodity, nor by the intention of the owner to transfer it to another state for sale, nor by his preparation of it for transportation, but by its actual delivery to a common carrier for transportation, or the actual commencement of its transfer to another state. At that time the power and regulating authority of the states ceases, and that of congress attaches and continues, until it has reached another state, and become mingled with the general mass of property in the latter state. That neither the production or manufacture of articles or commodities which constitute subjects of commerce, and which are intended for trade and traffic with citizens of other states, nor the preparation for their transportation from the state where produced or manufactured, priort o the commencement of the actual transfer, or transmission thereof to another state, constitutes that interstate commerce which comes within the regulating power of congress; and, further, that after the termination of the transportation of commodities- or articles of traffic from one state to another, and the mingling or merging thereof in the general mass of property in the state of destination, the sale, distribution, and consumption thereof in the latter state forms-no part of interstate commerce. Pensacola Tel. Co. v. Western Union Tel. Co., 96 U. S. 1; Brown v. Houston, 114 U. S. 622, 5 Sup. Ct. Rep. 1091; Coe v. Errol, 116 U. S. 517-520, 6 Sup. Ct. Rep. 475; Robbing v. Taxing Dist., 120 U. S. 497, 7 Sup. Ct. Rep. 592; and Kidd v. Pearson, 128 U. S. 1, 9 Sup. Ct. Rep. 6. In the latter case the supreme court pointed out the distinction between commerce and the subjects thereof, and held that the manufacture of distilled spirits, even though they were intended for export to other states, was not commerce, falling within the regulating powers of congress. Stripping the indictment of its verbiage,—its general recitals and conclusions of law,—does either count thereof charge any real offense against the United States over which the district court of Massachusetts has jurisdiction? The specific offense charged in" }, { "docid": "22702849", "title": "", "text": "Mr. Chief Justice Fuller, after stating the case, delivered' . the opinion of the court. The power vested in Congress “ to regulate commerce with foreign nations, and among the several States, and with the Indian tribes,” is the power to prescribe the rule by which that commerce is to be governed, and is a power complete in itself, acknowledging no limitations other tb.an those prescribed in the Constitution. It is co-extensive with the subject on- which it acts and cannot be stopped at the external boundary of a State, but must enter its interior and must be capable of authorizing the disposition of those articles which it introduces, so that they may become mingled with the common mass of property within the. territory entered. Gibbons v. Ogden, 9 W heat. 1; Brown v. Maryland, 12 Wheat. 419. And while, by virtue of. its jurisdiction over persons and property within its limits, a State may provide for the security of the lives, limbs, health and comfort of persons and the protection of property so situated, yet a subject matter which has been confided exclusively to Congress by the Constitution is not within the jurisdiction of the police power of the State, unless placed there by congressional action. Henderson v. Mayor of New York, 92 U. S. 259; Railroad Co. v. Husen, 95 U. S. 465; Walling v. Michigan, 116 U. S. 466; Robbins v. Shelby Taxing District, 120 U. S. 489. The power to regulate' commerce among the States is a unit, but if particular subjects within its operation do not require the application of a general or uniform system, the States may legislate in regard to them with a view to local needs and circumstances, until Congress otherwise directs; but the power thus exercised by the States is not identical in its extent with the power to regulate commerce among the States. The power to pass laws in respect to internal commerce, inspection laws, quarantine laws, health laws and laws in relation to bridges, ferries and highways, belongs to the class óf powers pertaining to locality, essential to local" }, { "docid": "22794555", "title": "", "text": "and usually all, of the defendants in the exercise of the freedom, which but for the contract would have been theirs, of selling in one state pipe to be delivered from another state at any price they might see fit to fix. Can there he any doubt that this was a restraint of interstate trade and commerce? Mr. Justice Field, in County of Mobile v. Kimball, 102 U. S. 691, 696, said: “Commerce with foreign countries and among the states, strictly considered, consists in intercourse and trailie, and the transportation and transit of persons and property, ns well as the purchase, sale, and exchange of commodities.” In Bobbins v. Taxing Dist., 320 U. S, 489, 7 Sup. Ct. 592, a law of Tennessee, which imposed a tax on all “drummers” who solicited orders on samples, was held unconstitutional in so far as if applied to the drummer of an Ohio firm, who was soliciting orders for goods to he sent from Ohio to purchasers in Tennessee, on the ground that it was a fax on interstate commerce. In delivering the opinion of the court in that case, Mr. Justice Bradley said (page 497, 120 U. S., and page 596, 7 Sup. Ct.) that a tax on the sale of goods, or the offer to sell them before they are brought into the state, was clearly a fax on interstate commerce. He further said: “The negotiation of sales of goods which are in another state, for the purpose of introducing them into the state in which the negotiation is made, is interstate commerce.” The principle thus announced has been reaffirmed by the court in Corson v. Maryland, 320 U. S. 502, 7 Sup. Ct. 655; in Asher v. Texas, 128 U. S. 129, 9 Sup. Ct. 1; in Stoutenburgh v. Hennick, 129 U. S. 141, 9 Sup. Ct. 256; and in Brennan v. City of Titusville, 353 U. S. 289, 14 Sup. Ct. 829. The point of these cases was emphasized by the distinction taken in Emert v. Missouri, 156 U. S. 296, 15 Sup. Ct. 367, in which the validity" }, { "docid": "22252044", "title": "", "text": "• by the United States. But congress certainly has not the power or authority under the commerce clause, or any other provision of the constitution, to limit and restrict the right of corporations created by the states, or the citi zens of the states, in the acquisition, control, and disposition of property. Neither can congress regulate or prescribe the price or prices at which such property, or the products thereof, shall be sold by the owner or owners, whether corporations or individuals. It is equally clear that congress has no jurisdiction over, and cannot make criminal, the aims,, purposes, and intentions of persons in the acquisition and control of property, which the states of their residence or creation sanction and permit. It is not material that such property, or the products thereof,, may become the subject of trade or commerce among the several states or with foreign nations. Commerce among the states, within the exclusive regulating power of congress, “ consist of intercourse and traffic between their citizens, and includes the transportation of persons and property, as well as the purchase, sale, and exchange of commodities.” County of Mobile v. Kimball, 102 U. S. 691-702; Gloucester Ferry Co. v. Pennsylvania,. 114 U. S. 203, 5 Sup. Ct. Rep. 826. In the application of this comprehensive definition, it is settled by the decisions of the supreme-court that such commerce includes, not only the actual transportation of commodities and persons between the states, but also the instrumentalities and processes of such transportation. That it includes all the negotiations and contracts which have for their object, or involve as an element thereof, such transmission or passage from one state to another. That such commerce begins, and the regulating power of congress attaches, when the commodity or thing traded in commences its transportation from the state of its production or situs to some other state or foreign country, and terminates when the transportation is completed * and the property has become a part of the general mass of the property in the state of its destination. When the commerce begins is determined, not by" }, { "docid": "22325265", "title": "", "text": "the subject is equivalent to its declaration that commerce in that matter, shall be free. Thus the absence of regulations as to interstate commerce with reference to any particular subject is taken as a declaration that the importation of that article into the States shall.be unrestricted. It is only after the importation is completed, and the property imported has mingled with and become a part of the general property of the State, that its regulations can act upon it, except so far. as may be necessary to insure safety in the disposition of the import until thus mingled. Cooley v. Board of Wardens of the Port of Philadelphia, 12 How. 299, 319; State Freight Tax Case, 15 Wall. 232, 271; Welton v. Missouri, 91 U. S. 275, 282; Railroad Co. v. Husen, 95 U. S. 465, 469; Mobile v Kimball, 102 U. S. 691, 697; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 203; Brown v. Houston, 114 U. S. 622, 631; Walling v. Michigan, 116 U. S. 446, 455; Pickard v. Pullman Southern Car Co., 117 U. S. 34; Wabash &c. Railway Co. v. Illinois, 118 U. S. 557; Robbins v. Shelby County Taxing District, 120 U. S. 489. It is a matter of history that one of the great objects of the formation of the Constitution was to secure uniformity of commercial regulations, and thus put an end to restrictive and hostile discriminations by one State against the products of other States, and against their importation and sale. “ It may be doubted,” says Chief Justice Marshall, “ whether any of the evils proceeding from the feebleness of the Federal government contributed more to that great revolution which introduced the present system than the deep and general conviction that commerce ought to be regulated by Congress. It is not, therefore, matter of surprise that the grant should be as extensive as the mischief, and should comprehend all foreign commerce and all commerce among the States.- To construe the power so as to impair its efficacy would tend to defeat an object, in the attainment of which the" }, { "docid": "476892", "title": "", "text": "1. The power to regulate commerce among the several states is granted to Congress by the Constitution in terms as absolute as is the power to regulate commerce with foreign nations. Brown v. Houston, 114 U. S. 627, 630, 5 Sup. Ct. 1091, 29 L. Ed. 257; Bowman v. Railway Co., 125 U. S. 465, 482, 8 Sup. Ct. 689, 1062, 31 L. Ed. 700; Crutcher v. Kentucky, 141 U. S. 47, 58, 11 Sup. Ct. 851, 35 L. Ed. 649; Pittsburg Coal Co. v. Bates, 156 U. S. 577, 578, 15 Sup. Ct. 415, 39 L. Ed. 538. “Definitions as to what constilutes ‘interstate commerce’ are not easily given so that they shall clearly define the full meaning of the term. We know from the cases decided in this court that it is a term of very large significance. It comprehends, as it is said, intercourse for the jmrposes of trade in any and all its forms, including transportation, purchase, sale, and exchange of commodities between the citizens of different states, and the power to regulate it embraces all the instruments by which such commerce may be conducted.” Hopkins v. United States, 171 U. S. 578, 597, 19 Sup. Ct. 40, 47 (43 L. Ed. 290). Ever since the decision of Gibbons v. Ogden, 22 U. S. 1, 6 L. Ed. 23, it has been held to be a term of the largest import, comprehending intercourse for the purposes of trade in any and all its forms, including transportation. For a full collation of the authorities on that subject, see the Lottery Cases, 188 U. S. 321, 23 Sup. Ct. 321, 47 L. Ed. 492. Has Congress under that provision of the Constitution, section 8 of article 1, the power to enact legislation regulating the employment of those necessarily required to manage the vehicles necessary for the transportation of interstate commerce? That Congress has assumed, ever since the adoption of the Constitution, that, under the commerce clause, it possesses the power to regulate the employment of and legislate for the protection of those engaged on the vehicles used for" }, { "docid": "9625011", "title": "", "text": "in commences its transportation from the-state of its production or situs to some other state or foreign country, and terminates when the transportation is completed, and the property has become a part of the general mass of the property in the state of its destination. When the commerce begins is determined, not by the character of the commodity, nor by the intention of the owner to transfer it to another state for sale, nor by his preparation of it for transportation, but by its actual delivery to a common carrier for transportation, or the actual commencement of its transfer to another state.' At that time the power and regulating authority of the states ceases, and that of Congress attaches and continues, until it has reached another state, and becomes mingled with the general mass of property in the latter state. That neither the production or manufacture of articles or commodities which constitute subjects of commerce, and which are intended for trade and traffic with citizens of other states, nor the preparation for their transportation from the state where produced or manufactured, prior to the commencement of the actual transfer, or transmission thereof to another state, constitutes that interstate commerce which comes within the regulating power of Congress, and, further, that after the termination of the transportation of commodities or articles of traffic from one state to another, and the mingling or merging thereof in the general mass of property in the state of destination, the sale, distribution, and consumption thereof in the latter state forms no part of interstate commerce. Pensacola Tel. Co. v. Western Union Tel. Co., 96 U. S. 1 [24 L. Ed. 708]; Brown v. Houston, 114 U. S. 622, 5 Sup. Ct. 1091 [29 L. Ed. 257]; Coe v. Errol, 116 U. S. 517-520, 6 Sup. Ct. 475 [29 L. Ed. 715]; Robbins v. Taxing Dist., 120 U. S. 497, 7 Sup. Ct. 592 [30 L. Ed. 694]; and Kidd v. Pearson, 128 U. S. 1, 9 Sup. Ct. 6 [32 L. Ed. 346], In the latter case the Supreme Court pointed out the distinction between" }, { "docid": "22702853", "title": "", "text": ". exercised, and the action of. the States cannot be permitted to. effect that which would be incompatible with such intention.'. Hence, inasmuch as interstate commerce, consisting in-, the transportation, purchase, sale and exchange of commodities, is national in its character, and must be governed by a uniform system,' so long as Congress does not pass any law to regulate it, .'or allowing the States so to do, it thereby indicates its will, - ,tnat such commerce shall be free and untrammelled. County of Mobile Kimball, 102 U. S. 691; Brown v. Houston, 114 U. S. 622, 631; Wabash, St. Louis &c. Railway v. Illinois, 118 U. S. 557; Robbins v. Shelby Taxing District, 120 U. S. 489, 493. That ardent spirits, distilled liquors, ale and beer are sublets of exchange, barter and traffic, like any other commodity in which a right of traffic exists, and are so recognized by the usages of the commercial world, the laws of Congress and the decisions of courts, is not denied. Being thus articles of commerce, can a.State, in the absence of legislation on the part of Congress,1 prohibit their importation from abroad or from a sister State ? or when imported prohibit their sale- by the importer? If-the importation. cannot be prohibited 'without ,-the consent of Congress, when does property imported from !abroad, or from a sister State, so'become part of- the common mass of property within-' State as to be subject to its .unimpeded control ? In Brown v. Maryland (supra) the act of the state legislature drawn in question was held invalid as repugnant to the prohibition of the Consk'íátjon upon the States- to lay any impost or duty upon imports - or exports, and to the clause granting fthe power to regulate commerce■; and it.- was laid down by the great magistrate who presided over this court 'for more than a third of' a century, that the point of time when the prohibition ceases and the power of the State to tax commences, is not the instant when 'the article enters the country, but when the importer has so" }, { "docid": "22816740", "title": "", "text": "power of the state and futile. Where the Congress has passed no law regulating interstate commerce in well-recognized articles of commerce, that fact is conclusive evidence that it intends such commerce to be free, and any law of a state which prohibits or restrains it at all is unconstitutional and void. Caldwell v. North Carolina, 187 U. S. 622, 629, 23 Sup. Ct. 229, 47 L. Ed. 336; Brown v. Houston, 114 U. S. 622, 631, 5 Sup. Ct. 1091, 29 L. Ed. 257; Bowerman v. Rogers, 125 U. S. 585, 587, 8 Sup. Ct. 986, 31 L. Ed. 815; Walling v. Michigan, 116 U. S. 455, 456, 6 Sup. Ct. 454, 29 L. Ed. 691; Welton v. The State of Missouri, 91 U. S. 275, 282, 23 L. Ed. 347; State Freight Tax, 15 Wall. 233, 21 L. Ed. 146; Brennan v. Titusville, 153 U. S. 289, 302, 14 Sup. Ct. 829, 38 L. Ed. 719; Robbins v. Shelby Comity Taxing District, 120 U. S. 489, 493, 7 Sup. Ct. 592, 30 L. Ed. 694; Le Loup v. Mobile, 127 U. S. 640, 647, 648, 8 Sup. Ct. 1380, 32 L. Ed. 311; Lyng v. Michigan, 135 U. S. 161, 166, 10 Sup. Ct. 725, 34 L. Ed. 150; Leisy v. Hardin, 135 U. S. 100, 119, 10 Sup. Ct. 681, 34 L. Ed. 128. The declaration of the Colorado statute that the fact that a foreign corporation has been doing business in the state without its license shall constitute an absolute defense to any action arising out of such business is ineffectual to restrain or modify the power or duty of the national courts to hear and decide the controversies of such corporations arising from its transactions of interstate commerce according to the very right of the matter. A Circuit Court of the United States may administer a new right or remedy granted by the statute of a state to its citizens according to the terms of that statute. Missouri, K. & T. Trust Co. v. Krumseig, 172 U. S. 351, 19 Sup. Ct. 179, 43 L. Ed." } ]

[ { "docid": "8794253", "title": "", "text": "under any “direct action” statute. Subdivision (c)(1) of the diversity jurisdiction statute states: a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the state where it has its principal place of business, except that in any direct action against the insurer of a policy ... to which action the insured is not joined as a party defendant, such insurer shall be deemed a citizen of the state of which the insured is a citizen ... 28 U.S.C. § 1332(c)(1). This clause was adopted in response to “direct action” statutes adopted in Louisiana and Wisconsin allowing direct actions by persons injured in automobile accidents against liability insurers. See Boston v. Titan Indem. Co., 34 F.Supp.2d 419, 422-23 (N.D.Miss.1999). The effect of the direct action statute was to create diversity jurisdiction in cases where both the tortfeasor and the injured party were residents of one state, but the tortfeasor’s insurer was a resident of another state. See Northbrook Nat’l Ins. Co. v. Brewer, 493 U.S. 6, 110 S.Ct. 297, 107 L.Ed.2d 223 (1989). The amendment to the diversity statute was adopted because such a result was not within the spirit or intent of diversity jurisdiction. See Prendergast v. Alliance Gen. Ins. Co., 921 F.Supp. 653, 655 (E.D.Mo.1996). Atlantic Mutual argues that Minnesota law does not permit direct actions, thus § 1332(c)(1) is inapplicable. It is well-settled in Minnesota that an injured third party claimant cannot sue an insurer directly, but must first obtain a judgment against the insured. See Morris v. American Family Mut. Ins. Co., 386 N.W.2d 233, 237 (Minn.1986). However, Minnesota statute § 571.75, subd. 4 acts as a direct action statute when the underlying lawsuit was resolved by a Miller-Shugart settlement because it allows the third party to bring suit against the insurer. See Minn. StatAnn. § 571.75, subd. 4. Although there are several procedural steps that must be taken before the third party can bring suit against the insurer, the procedure ultimately results in a direct action. In ruling that § 1332(c)(1) applies to Minnesota garnishment proceedings," } ]

[ { "docid": "9500998", "title": "", "text": "of remand, the court finds that the Mississippi garnishment statute providing for the issu-anee of a writ of garnishment on a suggestion for garnishment filed by a judgment creditor, Miss.Code Ann. § 11-35-1, is the equivalent of a direct action statute “which simply permits a suit against the insurer, without joining the insured.” See Moore v. Sentry Ins. Co., 399 F.Supp. at 931 (“The Mississippi garnishment statutes, particularly Miss.Code Ann. § 11-35-47 (1972), clearly are permissive in nature and do not make the resident insured an indispensable party.”). The court finds the analysis of a similar state statutory scheme persuasive. Prendergast v. Alliance General Ins. Co., 921 F.Supp. 653 (E.D.Mo.1996). The court in Prendergast construed the Missouri garnishment statute as a direct action statute even though its clear language “seems to require” joinder of the insured judgment debtor. Id. at 655. The court concluded: Missouri’s equitable garnishment statute essentially does in two steps what the Louisiana statute that lead to the change in § 1332(c)(1) did in one step, and provides to the suing plaintiff the same remedy that a direct action against the insurance com pany would have provided, were that allowed under Missouri law. M Similarly, Mississippi law allows a creditor to proceed against another said to be indebted to the creditor’s debtor only after the creditor has obtained a judgment against such debtor. Miss.Code Ann. § 11-35-1 (1972). First Miss. Nat'l Bank v. KLH Industries, Inc., 457 So.2d at 1337. As in Prendergast, [t]he defendant insurance company in this case is not being sued for any action it took against the [ plaintiff], but is simply being sued in an attempt to collect a judgment that has already been entered against its insured, a [Mississippi] citizen. 921 F.Supp. at 655. Accordingly, the court finds that the instant garnishment action is a direct action within the purview of section 1332(c)(1). Therefore, Titan is deemed a citizen of Mississippi for purposes of this action, thereby precluding removal on the grounds of lack of diversity and 28 U.S.C. § 1441(b). For the foregoing reasons, the court finds that the motion" }, { "docid": "11205646", "title": "", "text": "1332(c)(1) when injured parties had obtained judgments against the insured before bringing the action against the insurer. The Supreme Court refused to pass on this very issue as recently as 1989. See Northbrook Nat’l Ins. Co. v. Brewer, 493 U.S. 6, 9 n. 1, 110 S.Ct. 297,107 L.Ed.2d 223 (1989) (declining to address argument that a “direct action” is a suit in which “the injured party neither joins nor first obtains a judgment against the legally responsible party ”) (emphasis added). In fact, this Court is aware of only one ease addressing this precise question. The plaintiffs, Missouri residents, sought to collect a judgment they had obtained in Missouri state court against the defendant’s insureds, who were also Missouri citizens. See Prendergast v. Alliance General Insurance Co., 921 F.Supp. 653 (E.D.Mo.1996). The district court found that the Missouri statute, authorizing a cause of action against an insurance company in satisfaction of a previous judgment against its insured, did qualify as a “direct action.” It reasoned that the Missouri statute “essentially does in two steps what the Louisiana statute that [led] to the change in § 1332(c)(1) did in one step.” Id. at 655. Such a result is in keeping with both the plain language of the amended § 1332(c)(1) and the Congressional policy behind that provision. Congress amended the diversity statute in 1964 in reaction to the Supreme Court’s decision in Lumbermen’s Mutual Casualty Co. v. Elbert, 348 U.S. 48, 75 S.Ct. 151, 99 L.Ed. 59 (1954), in which the Court held that an individual could bring suit against an insurer in federal court on diversity jurisdiction under Louisiana’s direct action statute. See 13B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure (“Wright & Miller”) § 3629 (2d ed.1984). The amendment reflected, however, the “express congressional policy of preventing suit against an insurer in a federal court when both the injured party and the insured were citizens of the same state.” Id. The Senate Report accompanying the amendment reinforces this intent: The purpose of the proposed legislation is to amend section 1332(c) of title" }, { "docid": "9500999", "title": "", "text": "the same remedy that a direct action against the insurance com pany would have provided, were that allowed under Missouri law. M Similarly, Mississippi law allows a creditor to proceed against another said to be indebted to the creditor’s debtor only after the creditor has obtained a judgment against such debtor. Miss.Code Ann. § 11-35-1 (1972). First Miss. Nat'l Bank v. KLH Industries, Inc., 457 So.2d at 1337. As in Prendergast, [t]he defendant insurance company in this case is not being sued for any action it took against the [ plaintiff], but is simply being sued in an attempt to collect a judgment that has already been entered against its insured, a [Mississippi] citizen. 921 F.Supp. at 655. Accordingly, the court finds that the instant garnishment action is a direct action within the purview of section 1332(c)(1). Therefore, Titan is deemed a citizen of Mississippi for purposes of this action, thereby precluding removal on the grounds of lack of diversity and 28 U.S.C. § 1441(b). For the foregoing reasons, the court finds that the motion to remand should be granted. An order will issue accordingly. . Not having joined in the notice of removal, Coahoma County, Mississippi, a named defendant in this cause, has joined in the instant motion. . The decedent was involved in a fatal automobile accident on the subject road. . For purposes of diversity, a- county is considered a citizen of the state in which it is located. Moor v. Alameda County, 411 U.S. 693, 717-22, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973), overruled on other grounds, Monell v. Dept. of Social Services of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), cited in Reeves v. City of Jackson, 532 F.2d 491, 495 n. 5 (5th Cir.1976); Pyramid Corp. v. DeSoto County Board of Supervisors, 366 F.Supp. 1299, 1301 (N.D.Miss.1973). . The county is the defendant in the underlying wrongful death action and was named as a defendant, along with Titan, in the suggestion for garnishment. . 28 U.S.C. § 1332(c)(2) reads in pertinent part: the legal representative of the" }, { "docid": "8796275", "title": "", "text": "in one step.” Id. The Court held that the Missouri equitable garnishment statute is a “direct action” statute under 28 U.S.C. § 1332(c)(1). The District of Maryland held that a Maryland insurance law is a direct action within the meaning of 28 U.S.C. § 1332(c)(1). Sherman v. Pennsylvania Lumbermen's Mutual Ins. Co., 21 F.Supp.2d 543 (D.Md.1998). The statute provides, if an injured person is unable, after execution on a final judgment entered in an action against an insured, to recover the full amount of the final judgment, the person may bring an action against the insured’s insurer in accordance with the terms of the policy for the lesser of the amount of the judgment recovered in the action against the insured or the amount of the policy. MD INSURANCE § 19-102(b)(2). The Sherman Court examined the Congressional policy behind § 1332(c)(1), and found the express policy of preventing suit against an insurer in a federal court when both the injured party and the insured were citizens of the same state. Sherman v. Pennsylvania Lumbermen’s Mutual Ins. Co., 21 F.Supp.2d 543, 545 (D.Md.1998). The court held that although the Maryland statute required the plaintiffs to obtain judgment against the insured before filing an action against the insurance company, the case against the insurance company constitutes a “direct action.” Id. This case arises within the context of collection of a judgment pursuant to a Miller-Shugart settlement. The effect of the settlement is to substitute the injured party for the insured in a claim against the insurer. Miller v. Shugart, 316 N.W.2d 729, 735 (Minn.1982). In Miller v. Shu-gart, the Minnesota Supreme Court held that the injured third party may seek to collect the stipulated judgment entered pursuant to the settlement in a garnishment proceeding against the insurer. Id. at 732. Like the Missouri statute, the Minnesota garnishment procedure provides a method for collection of insurance proceeds by a plaintiff who has obtained a final judgment against an insured defendant for covered actions. The Minnesota garnishment procedure is also similar to the Maryland statute as both allow an action by a judgment creditor" }, { "docid": "9501008", "title": "", "text": "company to reach and apply the insurance money to the satisfaction of the judgment. § 379.200, R.S.Mo., quoted in Prendergast v. Alliance General Ins. Co., 921 F.Supp. 653, 654-55 (E.D.Mo.1996). . “Congress amended [section 1332(c)(1)] after Louisiana passed a 'direct action’ statute, which had the effect of 'creating] diversity jurisdiction in cases in which both the tortfeasor and the injured party were residents of Louisiana, but the tortfeasor’s insurer was considered a resident of another state.' ” Prendergast v. Alliance General Ins. Co., 921 F.Supp. at 655 (quoting Northbrook National Ins. Co. v. Brewer, 493 U.S. 6, 10, 110 S.Ct. 297, 107 L.Ed.2d 223, 230 (1989)). The court in Prendergast explained that \"Congress amended [section 1332(c)(1)] because such a result was not within the 'spirit or intent’ of diversity jurisdiction.” Id. at 655. . See supra note 22. . Titan contends that this garnishment is not a direct action on the ground that the county was joined as a defendant. Titan cannot have it both ways. Titan argues that the county should be realigned as a party plaintiff for purposes of 28 U.S.C. § 1332(a)(1) but that the county should be considered a defendant for purposes of § 1332(c)(1). . See supra note 8." }, { "docid": "9500995", "title": "", "text": "that the suggestion for garnishment, although assigned the same cause number as the underlying wrongful death action in state court, is a separate civil action within the purview of the removal statutes. See Lewis v. Blackmon, 864 F.Supp. 1, 4 (S.D.Miss.1994) (Fifth Circuit jurisprudence governs the procedural issue of removal of a garnishment action against the insurer of a judgment debtor). Since garnishment of insurance proceeds would be in the county’s interest, the court further finds that the county should be realigned as a party plaintiff for purposes of determining diversity of citizenship. See Moore v. Sentry Ins. Co., 399 F.Supp. at 931 (“ ‘Even if [the nondiverse insured] were to be considered a party to the present [garnishment] proceeding, he should be aligned for jurisdictional purposes with the plaintiff, as it would be to [the insured’s] interest to have the judgment against him satisfied by his insurer.’ ”) (quoting Randolph v. Employers Mut. Liability Ins. Co., 260 F.2d 461, 464 (8th Cir.1958), cert. denied, 359 U.S. 909, 79 S.Ct. 585, 3 L.Ed.2d 573 (1959)). Boston contends that the one-year limitions period under 28 U.S.C. § 1446(b) precludes removal of this cause on the grounds that the notice of removal was filed more than one year after the commencement of the wrongful death action in state court. The garnishment action, as a separate and independent action, was commenced upon the filing of the suggestion for garnishment and thus was timely removed within the applicable thirty-day limitations period under 28 U.S.C. § 1446(b). See New York Life Ins. Co. v. Deshotel, 142 F.3d 873, 887 (5th Cir.1998) (first paragraph of § 1446(b) applies to actions initially removable). Boston contends, in the alternative, that the garnishment action falls within the purview of a direct action against an insurer under 28 U.S.C. § 1332(c)(1). The Fifth Circuit has stated that the direct action provision was intended to eliminate diversity jurisdiction over actions brought directly against a foreign liability insurer for injuries or damage caused by a nondiverse insured. Williams v. Liberty Mut. Ins. Co., 468 F.2d 1207, 1209 (5th Cir.1972). See Hernandez v." }, { "docid": "420253", "title": "", "text": "Brewer, 493 U.S. 6, 110 S.Ct. 297, 107 L.Ed.2d 223 (1989). Id. at 222-23. In Northbrook,, an Illinois workers’ compensation insurer brought an action against a Texas employee to challenge an award of compensation benefits by the Texas Industrial Accident Board. Applying the plain language of § 1332(c)(1) restricting the provision to a direct action against an insurer, the Court held that the action by an insurer against an insured did not fall within § 1332(c)(1). Northbrook, 493 U.S. at 12-13, 110 S.Ct. at 301. Northbrook explicitly did not address the meaning of a “direct action.” Id. at 9 n. 1, 110 S.Ct. at 299 n. 1. Moreover, the narrow holding in Northbrook is not contrary to our interpretation of “direct action” in Beckham. The Chavarria decision does not follow binding Ninth Circuit precedent and has been criticized on this basis. See Vargas, 788 F.Supp. at 463; Field, 769 F.Supp. at 1138 n. 2; Basel, 757 F.Supp. at 41; Kimball Small Properties, 755 F.Supp. at 1466. Further, the legislative history of § 1332(c)(1) supports the result in Beckham. As explained in Northbrook, the provision was enacted in response to an increase in the caseload of federal district courts in Louisiana resulting from that state’s adoption of a “direct action” statute. Northbrook, 493 U.S. at 9-10, 110 S.Ct. at 299. The statute allowed an injured party to sue a tortfeasor’s insurer directly without joining the tortfeasor as a defendant, which created diversity jurisdiction in a large number of eases. Id. Believing that such suits did “not come within the spirit or the intent of the basic purpose of the diversity jurisdiction of the Federal judicial system,” Congress enacted the proviso “to eliminate under fhe diversity jurisdiction of the U.S. district courts, . suits on certain tort claims in which both parties are local residents,- but which, under a State ‘direct action’ statute, may be brought directly against a foreign insurance carrier without joining the local tort-feasor as a defendant.” Id., citing S.Rep. No. 1308, 88th Cong., 2d Sess. 1, 7 (1964); U.S.Code Cong. & Admin.News 1964, p. 2778-79, 2784. See also" }, { "docid": "8794252", "title": "", "text": "Section III on pages 7-9, and the last sentence on page 10 are hereby ordered stricken from Reko’s brief. B. Standard of Review The standard of review applicable to an appeal of a magistrate judge’s order on a nondispositive issue is extremely deferential. The district court must affirm an order by a magistrate judge unless it is “clearly erroneous or contrary to law.” Fed.R.Civ.P. 72(a); see also Banbury v. Omnitrition Int’l Inc., 818 F.Supp. 276, 279 (D.Minn.1993). “A finding is ‘clearly erroneous’ when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Chakales v. Commissioner of Internal Revenue, 79 F.3d 726, 728 (8th Cir.1996). C. Atlantic Mutual’s Appeal of Magistrate’s Order Atlantic Mutual appeals, arguing that Judge Boylan’s Order incorrectly applied 28 U.S.C. § 1332(c)(1) to the present actions, thereby finding that diversity jurisdiction to be lacking. Atlantic Mutual argues that § 1332(c)(1) does not apply to the present garnishment proceeding because it was not brought under any “direct action” statute. Subdivision (c)(1) of the diversity jurisdiction statute states: a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the state where it has its principal place of business, except that in any direct action against the insurer of a policy ... to which action the insured is not joined as a party defendant, such insurer shall be deemed a citizen of the state of which the insured is a citizen ... 28 U.S.C. § 1332(c)(1). This clause was adopted in response to “direct action” statutes adopted in Louisiana and Wisconsin allowing direct actions by persons injured in automobile accidents against liability insurers. See Boston v. Titan Indem. Co., 34 F.Supp.2d 419, 422-23 (N.D.Miss.1999). The effect of the direct action statute was to create diversity jurisdiction in cases where both the tortfeasor and the injured party were residents of one state, but the tortfeasor’s insurer was a resident of another state. See Northbrook Nat’l Ins. Co. v. Brewer, 493 U.S. 6," }, { "docid": "6128147", "title": "", "text": "however, courts have “uniformly defined” the term “direct action” to refer to “those cases in which a party suffering injuries or damage for which another is legally responsible is entitled to bring suit against the other’s liability insurer without joining the insured or first obtaining a judgment against him.” Fortson v. St. Paul Fire & Marine Insurance Co., 751 F.2d 1157, 1159 (11th Cir.1985) (emphasis added) (quoting Beckham v. Safeco Ins. Co. of Am., 691 F.2d 898, 901 (9th Cir.1982)). Leading treatises have adopted a similar approach. See, e.g., 7A Steven Plitt et al., Couch on Insurance 3d § 107:4 (1995) (“Where one in the position of a judgment creditor as a result of having obtained a judgment against a tortfeasor commences an action against the tortfeasor’s liability insurer to recover under the policy the damages for which the tortfeasor was adjudicated liable, such action is not a direct action within the meaning of the proviso to 28 U.S.C.A. § 1332(c)(1).”); 1 Barry R. Ostrager & Thomas R. Newman, Handbook on Insurance Coverage Disputes, § 7.07, at 664 (16th ed. 2012) (“[Djirect action statutes are not to be confused with certain state statutes that permit a suit directly against an insurer after a judgment has been secured against the insured.”). The legislative history of § 1332(c) likewise demonstrates that, for purpose of demonstrating diversity, a direct action is one in which an injured third-party claimant sues an insurance company for payment of a claim without first joining or obtaining judgment against the company’s insured. In 1964, Congress amended § 1332 in order to eliminate diversity jurisdiction over “suits on certain tort claims in which both parties are local residents, but which, under a State ‘direct action’ statute, may be brought directly against a foreign insurer carrier without joining the local tort-feasor as a defendant.” S.Rep. No. 1308, 88th Cong., 2d Sess. (1964) (emphasis added). The amendment to § 1332(c) was a direct response to these direct-action statutes, which existed only in Louisiana and Wisconsin. Id. It was the effect of the Louisiana statute that Congress found particularly troubling. Id. Louisiana" }, { "docid": "9501007", "title": "", "text": "issued, that any person.. .is indebted to the defendant therein, or has effects or property of the defendant in his, her or its possession, or knows of property of the defendant in his, her or its possession, it shall be the duty of the clerk of such court to issue a writ of garnishment.. .to summon such person.. .as garnishee.... . Miss.Code Ann. § 11-35-47 provides in part: The defendant may contest, in writing, the answer of the garnishee, and may allege that the garnishee is indebted to him in a larger sum than he has admitted, or that he holds property of his not admitted by the answer. . .but the plaintiff may take judgment for the sum admitted by the garnishee, or for the condemnation of the property admitted to be in his hands, notwithstanding the contest. . The Missouri garnishment statute provides: .. .if the judgment is not satisfied within thirty days after the date when it is rendered, the judgment creditor may proceed in equity against the defendant and the insurance company to reach and apply the insurance money to the satisfaction of the judgment. § 379.200, R.S.Mo., quoted in Prendergast v. Alliance General Ins. Co., 921 F.Supp. 653, 654-55 (E.D.Mo.1996). . “Congress amended [section 1332(c)(1)] after Louisiana passed a 'direct action’ statute, which had the effect of 'creating] diversity jurisdiction in cases in which both the tortfeasor and the injured party were residents of Louisiana, but the tortfeasor’s insurer was considered a resident of another state.' ” Prendergast v. Alliance General Ins. Co., 921 F.Supp. at 655 (quoting Northbrook National Ins. Co. v. Brewer, 493 U.S. 6, 10, 110 S.Ct. 297, 107 L.Ed.2d 223, 230 (1989)). The court in Prendergast explained that \"Congress amended [section 1332(c)(1)] because such a result was not within the 'spirit or intent’ of diversity jurisdiction.” Id. at 655. . See supra note 22. . Titan contends that this garnishment is not a direct action on the ground that the county was joined as a defendant. Titan cannot have it both ways. Titan argues that the county should be realigned as" }, { "docid": "9500997", "title": "", "text": "Travelers Ins. Co., 489 F.2d 721, 723 (5th Cir.) (“The 1964 amendment was a response to ‘direct action’ statutes adopted in Louisiana and Wisconsin, allowing direct actions against liability insurers by persons injured in motor vehicle accidents.”), cert. denied, 419 U.S. 844, 95 S.Ct. 78, 42 L.Ed.2d 73 (1974). The court in Hernandez held that an injured employee’s action against his employer’s workmen’s compensation carrier constitutes a direct action under section 1332(e)(1). Id. at 724 (Texas workmen’s compensation statute requires a direct action against the workmen’s compensation carrier and thus “goes further than a ‘direct action’ statute, which simply permits a suit against the insurer, without joining the insured”) (emphasis added). The court concluded: Whatever may have been the specific evil prompting congressional action in 1964, Congress chose to remove all direct actions from the diversity jurisdiction. Id. at 723-24 (“when the language of a congressional act is plain and specific, courts have no more license to shorten the reach of the act than to lengthen it”) (emphasis in original). Resolving any doubt in favor of remand, the court finds that the Mississippi garnishment statute providing for the issu-anee of a writ of garnishment on a suggestion for garnishment filed by a judgment creditor, Miss.Code Ann. § 11-35-1, is the equivalent of a direct action statute “which simply permits a suit against the insurer, without joining the insured.” See Moore v. Sentry Ins. Co., 399 F.Supp. at 931 (“The Mississippi garnishment statutes, particularly Miss.Code Ann. § 11-35-47 (1972), clearly are permissive in nature and do not make the resident insured an indispensable party.”). The court finds the analysis of a similar state statutory scheme persuasive. Prendergast v. Alliance General Ins. Co., 921 F.Supp. 653 (E.D.Mo.1996). The court in Prendergast construed the Missouri garnishment statute as a direct action statute even though its clear language “seems to require” joinder of the insured judgment debtor. Id. at 655. The court concluded: Missouri’s equitable garnishment statute essentially does in two steps what the Louisiana statute that lead to the change in § 1332(c)(1) did in one step, and provides to the suing plaintiff" }, { "docid": "8796272", "title": "", "text": "according to their true interests in the outcome of the litigation. Wright, Miller & Cooper, Federal Practice and Procedure § 3723 at 606 (3d ed.1998). Even if CPI were more than a nominal party in the garnishment proceeding, CPI would be realigned with the creditors for jurisdictional purposes, as it would be in CPI’s interest to have the judgment against him satisfied by his insurer. Randolph v. Employers Mutual Liability Ins. Co., 260 F.2d 461, 464 (8th Cir.1958); Boston v. Titan Indem. Co., 34 F.Supp.2d 419, 422 (N.D.Miss.1999). The creditors and debtor, all citizens of Minnesota, would appear to be diverse from the garnishee, a New York corporation. At hearing, creditors suggested that under 28 U.S.C. § 1332(c)(1), the garnishee insurance company should be deemed a citizen of the state of its insured. CPI, the insured, is a citizen of the state of Minnesota as are creditors, the Reko and Thorson trustees. Diversity would be destroyed if garnishee is deemed a citizen of Minnesota. Subdivision (c)(1) of the diversity jurisdiction statute states, a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business, except that in any direct action against the insurer of a policy.. .to which action the insured is not joined as a party defendant, such insurer shall be deemed a citizen of the state of which the insured is a citizen.... 28 U.S.C. § 1332(c)(1). This clause was adopted in response to “direct action” statutes adopted in Louisiana and Wisconsin allowing direct actions by persons injured in automobile accidents against liability insurers. Boston v. Titan Indem. Co., 34 F.Supp.2d 419, 422-23 (N.D.Miss.1999). The effect of the direct action statute was to create diversity jurisdiction in cases where both the tortfeasor and the injured party were residents of one state, but the tortfeasor’s insurer was considered a resident of another state. Northbrook National Ins. Co. v. Brewer, 493 U.S. 6, 110 S.Ct. 297, 107 L.Ed.2d 223 (1989). The amendment to the diversity statute was adopted because such a result" }, { "docid": "11205647", "title": "", "text": "the Louisiana statute that [led] to the change in § 1332(c)(1) did in one step.” Id. at 655. Such a result is in keeping with both the plain language of the amended § 1332(c)(1) and the Congressional policy behind that provision. Congress amended the diversity statute in 1964 in reaction to the Supreme Court’s decision in Lumbermen’s Mutual Casualty Co. v. Elbert, 348 U.S. 48, 75 S.Ct. 151, 99 L.Ed. 59 (1954), in which the Court held that an individual could bring suit against an insurer in federal court on diversity jurisdiction under Louisiana’s direct action statute. See 13B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure (“Wright & Miller”) § 3629 (2d ed.1984). The amendment reflected, however, the “express congressional policy of preventing suit against an insurer in a federal court when both the injured party and the insured were citizens of the same state.” Id. The Senate Report accompanying the amendment reinforces this intent: The purpose of the proposed legislation is to amend section 1332(c) of title 28, United States Code, so as to eliminate under the diversity jurisdiction of the U.S. district courts, suits on certain tort claims in which both parties are local residents, but which, under a State ‘direct action’ statute, may be brought directly against a foreign insurance carrier without joining the local tort-feasor as a defendant. S.Rep. No. 1308, 88th Cong., 2d Sess. 1 (1964), reprinted in 1964 U.S.C..C.A.N. 2778, 2778-79 (emphasis added). Thus, the plain language and legislative history of 28 U.S.C. § 1332(c)(1) suggest that Congress intended it to apply regardless of whether the plaintiff has first obtained a judgment against the tortfeasor. Therefore, although the Maryland statute required the plaintiffs to seek judgment against the insured before filing this action, this case constitutes a “direct action.” As such, the Court attributes the Maryland citizenship of Eastern to Lumbermen’s Mutual. Because the parties lack complete diversity, the Court shall, by separate Order, REMAND this case to the Circuit Court of Maryland for Dorchester County. . Maryland's insurance law, § 19-102(b), provides in relevant part that" }, { "docid": "8796276", "title": "", "text": "Ins. Co., 21 F.Supp.2d 543, 545 (D.Md.1998). The court held that although the Maryland statute required the plaintiffs to obtain judgment against the insured before filing an action against the insurance company, the case against the insurance company constitutes a “direct action.” Id. This case arises within the context of collection of a judgment pursuant to a Miller-Shugart settlement. The effect of the settlement is to substitute the injured party for the insured in a claim against the insurer. Miller v. Shugart, 316 N.W.2d 729, 735 (Minn.1982). In Miller v. Shu-gart, the Minnesota Supreme Court held that the injured third party may seek to collect the stipulated judgment entered pursuant to the settlement in a garnishment proceeding against the insurer. Id. at 732. Like the Missouri statute, the Minnesota garnishment procedure provides a method for collection of insurance proceeds by a plaintiff who has obtained a final judgment against an insured defendant for covered actions. The Minnesota garnishment procedure is also similar to the Maryland statute as both allow an action by a judgment creditor against the insured’s insurer when the debt is not collectible from the insured (in this case because the insured has entered into a Miller-Shugart settlement collectible only from the insurer). The specific statute in Minnesota which allows a judgment creditor to take action against an insurer is § 571.75 Subd. 4. Where the insurer has been served a garnishment summons and denied liability, the creditor may file a supplemental complaint against the insurer and must set forth facts to establish probable cause, in the case of a Miller Shugart settlement, that there is insurance coverage and the settlement was absent fraud or collusion and was reasonable. When the creditor makes such a showing, it is allowed to file a complaint against the insurer. Although there are several steps that must be taken before the third party can bring suit against the insurer, the procedure results in a direct action against the insurer. Considering the purpose of 28 U.S.C. § 1332(c)(1), to prevent suit against an insurer in a federal court when both the injured party" }, { "docid": "8796273", "title": "", "text": "be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business, except that in any direct action against the insurer of a policy.. .to which action the insured is not joined as a party defendant, such insurer shall be deemed a citizen of the state of which the insured is a citizen.... 28 U.S.C. § 1332(c)(1). This clause was adopted in response to “direct action” statutes adopted in Louisiana and Wisconsin allowing direct actions by persons injured in automobile accidents against liability insurers. Boston v. Titan Indem. Co., 34 F.Supp.2d 419, 422-23 (N.D.Miss.1999). The effect of the direct action statute was to create diversity jurisdiction in cases where both the tortfeasor and the injured party were residents of one state, but the tortfeasor’s insurer was considered a resident of another state. Northbrook National Ins. Co. v. Brewer, 493 U.S. 6, 110 S.Ct. 297, 107 L.Ed.2d 223 (1989). The amendment to the diversity statute was adopted because such a result was not within the spirit or intent of diversity jurisdiction. Prendergast v. Alliance General Ins. Co., 921 F.Supp. 653, 655 (E.D.Mo.1996). The issue of whether Minnesota’s garnishment proceedings constitute a direct action under 28 U.S.C. § 1332(c)(1) is a case of first impression. Some guidance can be taken from the Eastern District of Missouri’s holding that the Missouri “equitable garnishment” statute is a direct action as the term is used in § 1332(c)(1). Prendergast v. Alliance General Ins. Co., 921 F.Supp. 653, 655 (E.D.Mo.1996). The Missouri statute provides a method for collection of insurance proceeds by a plaintiff who has obtained a final judgment against an insured defendant for covered actions. Id. at 654. The Prendergast Court reasoned that the insurance company was not being sued under the Missouri garnishment statute for any action it took against the plaintiffs, but was being sued to collect a judgment that was already entered against its insured. Id. at 655. The Court concluded that “Missouri’s equitable garnishment statute essentially does in two steps what the Louisiana statute did" }, { "docid": "8796271", "title": "", "text": "of the “Miller-Shugart’ settlement was to substitute the injured claimant for the insureds in a claim against the insurer, with the insureds taking a “passive, disinterested role”). The presence of a nominal party has no controlling significance for removal purposes. Bradley, 382 F.2d at 419. CPI’s consent for removal of the garnishment proceeding was not necessary for proper removal. The trustees, citizens of Minnesota and the creditors in the garnishment proceedings, claim that diversity is lacking because the debtor, CPI, is a Minnesota corporation. Removal is available on diversity jurisdiction grounds when none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. 28 U.S.C. § 1441(b). Diversity must exist at the time the original action is filed in state court and at the time of removal. 14B Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice And Procedure § 3723 at 571 (3d ed.1998). However, before determining removability under § 1441(b), the district court will realign the parties according to their true interests in the outcome of the litigation. Wright, Miller & Cooper, Federal Practice and Procedure § 3723 at 606 (3d ed.1998). Even if CPI were more than a nominal party in the garnishment proceeding, CPI would be realigned with the creditors for jurisdictional purposes, as it would be in CPI’s interest to have the judgment against him satisfied by his insurer. Randolph v. Employers Mutual Liability Ins. Co., 260 F.2d 461, 464 (8th Cir.1958); Boston v. Titan Indem. Co., 34 F.Supp.2d 419, 422 (N.D.Miss.1999). The creditors and debtor, all citizens of Minnesota, would appear to be diverse from the garnishee, a New York corporation. At hearing, creditors suggested that under 28 U.S.C. § 1332(c)(1), the garnishee insurance company should be deemed a citizen of the state of its insured. CPI, the insured, is a citizen of the state of Minnesota as are creditors, the Reko and Thorson trustees. Diversity would be destroyed if garnishee is deemed a citizen of Minnesota. Subdivision (c)(1) of the diversity jurisdiction statute states, a corporation shall" }, { "docid": "8796274", "title": "", "text": "was not within the spirit or intent of diversity jurisdiction. Prendergast v. Alliance General Ins. Co., 921 F.Supp. 653, 655 (E.D.Mo.1996). The issue of whether Minnesota’s garnishment proceedings constitute a direct action under 28 U.S.C. § 1332(c)(1) is a case of first impression. Some guidance can be taken from the Eastern District of Missouri’s holding that the Missouri “equitable garnishment” statute is a direct action as the term is used in § 1332(c)(1). Prendergast v. Alliance General Ins. Co., 921 F.Supp. 653, 655 (E.D.Mo.1996). The Missouri statute provides a method for collection of insurance proceeds by a plaintiff who has obtained a final judgment against an insured defendant for covered actions. Id. at 654. The Prendergast Court reasoned that the insurance company was not being sued under the Missouri garnishment statute for any action it took against the plaintiffs, but was being sued to collect a judgment that was already entered against its insured. Id. at 655. The Court concluded that “Missouri’s equitable garnishment statute essentially does in two steps what the Louisiana statute did in one step.” Id. The Court held that the Missouri equitable garnishment statute is a “direct action” statute under 28 U.S.C. § 1332(c)(1). The District of Maryland held that a Maryland insurance law is a direct action within the meaning of 28 U.S.C. § 1332(c)(1). Sherman v. Pennsylvania Lumbermen's Mutual Ins. Co., 21 F.Supp.2d 543 (D.Md.1998). The statute provides, if an injured person is unable, after execution on a final judgment entered in an action against an insured, to recover the full amount of the final judgment, the person may bring an action against the insured’s insurer in accordance with the terms of the policy for the lesser of the amount of the judgment recovered in the action against the insured or the amount of the policy. MD INSURANCE § 19-102(b)(2). The Sherman Court examined the Congressional policy behind § 1332(c)(1), and found the express policy of preventing suit against an insurer in a federal court when both the injured party and the insured were citizens of the same state. Sherman v. Pennsylvania Lumbermen’s Mutual" }, { "docid": "8796277", "title": "", "text": "against the insured’s insurer when the debt is not collectible from the insured (in this case because the insured has entered into a Miller-Shugart settlement collectible only from the insurer). The specific statute in Minnesota which allows a judgment creditor to take action against an insurer is § 571.75 Subd. 4. Where the insurer has been served a garnishment summons and denied liability, the creditor may file a supplemental complaint against the insurer and must set forth facts to establish probable cause, in the case of a Miller Shugart settlement, that there is insurance coverage and the settlement was absent fraud or collusion and was reasonable. When the creditor makes such a showing, it is allowed to file a complaint against the insurer. Although there are several steps that must be taken before the third party can bring suit against the insurer, the procedure results in a direct action against the insurer. Considering the purpose of 28 U.S.C. § 1332(c)(1), to prevent suit against an insurer in a federal court when both the injured party and the insured are citizens of the same state, even where several steps have to be taken before an injured third party can directly sue the tortfea-sor’s insurer, the result is the same. When the injured party and the insured are citizens of the same state, Congress has expressed an intent that the insurer should not create diversity jurisdiction to bring the case in federal court. To find that the Minnesota garnishment procedure in the context of a Miller-Shugart settlement is not a “direct action” within the meaning of § 1332(c)(1), would defeat the Congressional intent. Although the Minnesota procedure for bringing a third party action against an insurer differs procedurally from the Louisiana and Wisconsin direct action statutes originally contemplated by Congress, there is no discernable reason to treat differently the Minnesota statutes, which result in the same situation that Congress intended to .prevent. Minnesota statute § 571.75 Subd. 4 acts as a direct action statute when the underlying lawsuit was resolved by a Miller-Shugart settlement. Applying § 1332(c)(1) to the facts of this" }, { "docid": "9877462", "title": "", "text": "“direct action” to apply only to tort actions brought by third parties against the insurer as a substitute for the insured. See, e.g., Bowers v. Cont’l Ins. Co., 753 F.2d 1574, 1576 (11th Cir.1985) (holding that suits by insureds against insurers are not direct actions within the meaning of the statute); White v. United States Fid. & Guar. Co., 356 F.2d 746, 747-48 (1st Cir.1966) (same); Kimball Small Props. v. Am. Nat’l Fire Ins., 755 F.Supp. 1465 (N.D.Cal.1991) (same); Field v. Liberty Mut. Ins. Co., 769 F.Supp. 1135, 1138 (D.Haw.1991) (same); McGlinchey v. Hartford Accident & Indem. Co., 666 F.Supp. 70, 71 (E.D.Pa.1987) (same); Smith v. State Farm Ins. Co., 615 F.Supp. 453, 455 (D.Haw.1985) (same). Courts reaching this conclusion have generally relied on legislative history, which suggests that “direct action” was meant by Congress as a term of art to refer to the so-called direct action statutes enacted in Louisiana and certain other states in the early 1960s, which allowed tort plaintiffs to sue a tortfeasor’s insurance carrier directly, without joining the tortfeasor as a party. See Rosa v. Allstate Ins. Co., 981 F.2d 669, 674-75 (2d Cir.1992) (summarizing the relevant legislative history). Since these statutes often had the effect of removing nondiverse tortfeasors from basic tort actions, many federal courts saw an increase of up to 50% in their caseloads due largely to insurers’ newfound ability to remove tort actions brought by diverse plaintiffs. The insurance provision of section 1332(c)(1) was enacted to respond to this problem by narrowing the diversity jurisdiction of federal district courts. Id. Most courts interpreting the provision have therefore ignored its seemingly broad language in favor of a narrow interpretation based on legislative intent. The Sixth Circuit, however, has given the insurance provision of section 1332(c)(1) an unusually expansive reading. See Ford Motor Co. v. Ins. Co. of N. America, 669 F.2d 421, 424 (6th Cir.1982) (adopting the broad reading of section 1332(c)(1) applied by some Sixth Circuit and Fifth Circuit courts). More specifically, the Sixth Circuit has held that the provision should not be limited only to the tort context, but should" }, { "docid": "9500996", "title": "", "text": "Boston contends that the one-year limitions period under 28 U.S.C. § 1446(b) precludes removal of this cause on the grounds that the notice of removal was filed more than one year after the commencement of the wrongful death action in state court. The garnishment action, as a separate and independent action, was commenced upon the filing of the suggestion for garnishment and thus was timely removed within the applicable thirty-day limitations period under 28 U.S.C. § 1446(b). See New York Life Ins. Co. v. Deshotel, 142 F.3d 873, 887 (5th Cir.1998) (first paragraph of § 1446(b) applies to actions initially removable). Boston contends, in the alternative, that the garnishment action falls within the purview of a direct action against an insurer under 28 U.S.C. § 1332(c)(1). The Fifth Circuit has stated that the direct action provision was intended to eliminate diversity jurisdiction over actions brought directly against a foreign liability insurer for injuries or damage caused by a nondiverse insured. Williams v. Liberty Mut. Ins. Co., 468 F.2d 1207, 1209 (5th Cir.1972). See Hernandez v. Travelers Ins. Co., 489 F.2d 721, 723 (5th Cir.) (“The 1964 amendment was a response to ‘direct action’ statutes adopted in Louisiana and Wisconsin, allowing direct actions against liability insurers by persons injured in motor vehicle accidents.”), cert. denied, 419 U.S. 844, 95 S.Ct. 78, 42 L.Ed.2d 73 (1974). The court in Hernandez held that an injured employee’s action against his employer’s workmen’s compensation carrier constitutes a direct action under section 1332(e)(1). Id. at 724 (Texas workmen’s compensation statute requires a direct action against the workmen’s compensation carrier and thus “goes further than a ‘direct action’ statute, which simply permits a suit against the insurer, without joining the insured”) (emphasis added). The court concluded: Whatever may have been the specific evil prompting congressional action in 1964, Congress chose to remove all direct actions from the diversity jurisdiction. Id. at 723-24 (“when the language of a congressional act is plain and specific, courts have no more license to shorten the reach of the act than to lengthen it”) (emphasis in original). Resolving any doubt in favor" } ]

[ { "docid": "22720343", "title": "", "text": "prior to sentencing, counsel never actually abandoned the possibility that they would present a mitigation defense. Until the court denied their motion, then, they had every reason to develop the most powerful mitigation case possible. What is more, during the sentencing proceeding itself, counsel did not focus exclusively on Wiggins’ direct responsibility for the murder. After introducing that issue in her opening statement, id., at 70-71, Nethereott entreated the jury to consider not just what Wiggins “is found to have done,” but also “who [he] is.” Id., at 70. Though she told the jury it would “hear that Kevin Wiggins has had a difficult life,” id., at 72, counsel never followed up on that suggestion with details of Wiggins’ history. At the same time, counsel called a criminologist to testify that inmates serving life sentences tend to adjust well and refrain from further violence in prison — testimony with no bearing on,whether petitioner committed the murder by his own hand. Id., at 311-312. Far from focusing exclusively on petitioner’s direct responsibility, then, counsel put on a halfhearted mitigation case, taking precisely the type of “ ‘shotgun’ ” approach the Maryland Court of Appeals concluded counsel sought to avoid. Wiggins v. State, 352 Md., at 609, 724 A. 2d, at 15. When viewed in this light, the “strategic decision” the state courts and respondents all invoke to justify counsel’s limited pursuit of mitigating evidence resembles more a post hoc rationaliza tion of counsel’s conduct than an accurate description of their deliberations prior to sentencing. In rejecting petitioner’s ineffective assistance claim, the Maryland Court of Appeals appears to have assumed that because counsel had some information with respect to petitioner’s background — the information in the PSI and the DSS records — they were in a position to make a tactical choice not to present a mitigation defense. Id., at 611-612, 724 A. 2d, at 17 (citing federal and state precedents finding ineffective assistance in cases in which counsel failed to conduct an investigation of any kind). In assessing the reasonableness of an attorney’s investigation, however, a court must consider not only" } ]

[ { "docid": "14408330", "title": "", "text": "implicating him was also a reasonable application of established federal law. See supra Section III.B.1.a; Powell, 906 P.2d at 780. e. Trial Counsel Failed to Request Jury Instructions on Voluntary Intoxication and Diminished-Capacity Manslaughter This same fate falls upon Powell’s claim that his trial counsel should have request ed instructions on a voluntary-intoxication defense and the lesser offense of diminished-capacity manslaughter. We have already concluded that the state appellate court reasonably held that the evidence did not support giving these instructions. See supra Section III.B.3. For the same reasons, the OCCA reasonably denied relief on these ineffective-assistance claims. See Powell, 906 P.2d at 780; see also id. at 777-78; cf. Le, 311 F.3d at 1026-27 (holding that defense counsel was not ineffective for failing to request a self-defense instruction, where the evidence did not permit such instruction under Oklahoma law). f. Cumulative Prejudice Because the sum of various zeroes remains zero, the claimed prejudicial effect of their trial attorneys’ cumulative errors does not warrant habeas relief. See, e.g., Hawkins v. Hannigan, 185 F.3d 1146, 1158 (10th Cir.1999) (considering prejudice resulting from several instances of deficient performance). As to Spears, we have concluded above that his trial attorney was not deficient in failing to object to the flight instruction. Moreover, even assuming that his attorney was deficient in not objecting to the victim-impact testimony and to the prosecutor’s argument generally, the cumulative effect of those presumed errors was insufficient to create a reasonable probability that, but for those errors, the jury would not have convicted Spears of first-degree murder. Similarly, Powell has failed to establish that the cumulative effect of any prejudice he may have suffered as a result of his attorney’s allegedly deficient performance warrants habeas relief. 6. Powell’s Ineffective-Assistance Claims Defaulted in State Court Powell raised additional ineffective-trial-counsel claims in his first state post-conviction application, claiming that his defense attorney (1) inadequately advised him concerning the State’s plea offer, (2) failed to object to victim-impact evidence, (3) failed to impeach Officer Wigley’s testimony that Powell admitted to him that the group, including Powell, had intended to steal the victim’s" }, { "docid": "16625805", "title": "", "text": "first and second degree murder. Beardslee, 53 Cal.3d at 85-87, 279 Cal.Rptr. 276, 806 P.2d 1311. The district court agreed with this reasoning. Both courts found that the jury’s decision to reject second degree murder meant that they would not have accepted the lesser charge of manslaughter, rendering any instructive error harmless. Beardslee argues that despite the second degree murder instruction, he was entitled to an instruction on manslaughter. He claims that all viable lesser-included charges must be instructed, and under a theory of imperfect duress, a jury may have agreed that he held an honest, if unreasonable, fear of Rutherford. However, none of the cases on imperfect duress suggests that his theory is viable. Rather, the relevant California cases have involved imperfect self-defense, in which the defendant alleged he honestly, but unreasonably, believed he was in danger from the person he killed. See People v. McCoy, 25 Cal.4th 1111, 1115-16, 108 Cal.Rptr.2d 188, 24 P.3d 1210 (2001); People v. McKelvy, 194 Cal.App.3d 694, 701, 239 Cal.Rptr. 782 (1987); People v. Flannel, 25 Cal.3d 668, 674-75, 160 Cal.Rptr. 84, 603 P.2d 1 (1979); see also People v. Uriarte, 223 Cal.App.3d 192, 197-98, 272 Cal.Rptr. 693 (1990) (acknowledging that a related honest-but-unreasonable belief may under some circumstances reduce murder to manslaughter, but observing that the defendant must believe serious injury was imminent and that lethal force was necessary). Beardslee was not acting in self-defense when he acted, and any ostensible threat from Rutherford was not imminent. Moreover, contrary to Beardslee’s claim, jury instructions are not required as to all possible lesser-included offenses. For example, in Murtishaw v. Woodford, 255 F.3d 926, 955(9th Cir.2001), the case upon which Beardslee relies, we did not require an imperfect self-defense instruction because the jury was presented with other lesser-included options. Although these options included both second degree murder and manslaughter, the primary consideration in Murtishaw was avoiding the type of all-or-nothing situation at issue in Beck. In sum, the district court properly granted summary judgment on this claim. Although the trial court rejected the defense request to instruct on manslaughter, the state trial court included" }, { "docid": "1846877", "title": "", "text": "the state court’s factual findings, Davis’s failure to bring in this evidence was objectively unreasonable under prevailing professional norms and was not the product of a “conscious and informed decision on trial tactics and strategy.” Virgil, 446 F.3d at 608 (quotation omitted); see also Moore, 194 F.3d at 611 (“Counsel’s decision to exclude [exculpatory evidence], which produced no conceivable benefit to the defense and prejudiced Moore by precluding reliance upon a plausible alternative defensive theory that was supported by other evidence in the record, was professionally unreasonable.”). Given the seriousness of Davis’s unreasoned failure to present this powerful exculpatory evidence, we also agree that the state court’s decision was an “unreasonable application” of Strickland. 28 U.S.C. § 2254(d). 3. Failure to Request a Lesser-Included Offense Instruction The district court found that, given the opportunity, there is a “probability that the jury would not have convicted Richards of murder if it had been given the option of convicting him of aggravated assault,” and that Davis’s failure to request such an instruction was not the result of any reasoned trial strategy. Richards, 578 F.Supp.2d at 868. In reaching this conclusion, the district court found that the state trial court would have committed error in refusing such an instruction, and that, based on her testimony at the evidentiary hearing, Davis erroneously believed that a lesser included offense instruction is not available unless the State raises the elements of the lesser offense. Under Texas law, there is a two-step test to determine whether a lesser included offense instruction should be given: first, the lesser included offense must be within the proof necessary to establish the offense charged; second, there must be some evidence in the record that if the defendant is guilty, he is guilty only of the lesser offense. Alexander v. McCotter, 775 F.2d 595, 600 (5th Cir.1985) (quoting Johnson v. State, 623 S.W.2d 654, 657 (Tex.Crim.App.1981)). An assault occurs when a person “(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse ... or (3) intentionally or knowingly causes physical contact with another when the person knows or" }, { "docid": "1846879", "title": "", "text": "should reasonably believe that the other will regard the contact as offensive or provocative.” Tex. Penal Code § 22.01(a)(1). The assault is aggravated when, among other circumstances, the person “(1) causes serious bodily injury to another, including the person’s spouse; or (2) uses or exhibits a deadly weapon during the commission of the assault.” Id. § 22.02(a). In this case, although the State does not dispute that aggravated assault is a lesser included offense of murder, it argues that there was no evidence that Richards was guilty only of the lesser charge because Richards admitted to intentionally hitting Baker and, under Richards self-defense theory, he is guilty of nothing. Further, the State maintains, Davis’s decision not to request a lesser included offense instruction was a conscious and informed decision: Davis testified at the evidentiary hearing that she did not think the State had enough evidence to convict Richards, and she did not want the jury to be able to convict him of the lesser charge. Once again, after a careful examination of the record, and in consideration of both the district court’s opportunity to observe the witnesses and assess their credibility and the deference due to the state court’s findings under AEDPA, we agree with the district court that Davis’s failure to request a lesser-included offense instruction was deficient and not a strategic decision. In her affidavit and again at the evidentiary hearing Davis stated that such a request would have been frivolous. A request for a lesser-included offense instruction on the basis that another assault, subsequent to that described by Brown, Qualls, and Richards, caused Baker’s death would clearly not have been frivolous, and any doubt as to whether it was supported by the evidence is due to Davis’s failure to introduce exculpatory evidence as discussed above. This is true even though Richards asserted self-defense: it would be entirely possible for the jury to believe that Richards did not act in self-defense but also believe that he did not kill Baker. Davis’s testimony strongly suggests that she both failed to recognize this possibility and misunderstood the law governing lesser-included" }, { "docid": "9900137", "title": "", "text": "He agreed freely; agents did not pressure him to talk or to reconsider his assertion of the right to counsel. See United States v. Rodriquez-Gastelum, 569 F.2d at 488. We also note that Skinner confessed immediately after questioning began and that upon reaching the police station Skinner signed a waiver form. This signed waiver is additional strong evidence of a valid waiver. North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979). II The Requested Voluntary Manslaughter Instruction Skinner admitted at trial that he killed Cullison, but argued that he shot him in self-defense. The trial judge gave instructions covering first and second degree murder, voluntary manslaughter, and self-defense, but he refused to give an instruction on involuntary manslaughter. A defendant is entitled to a lesser-included offense instruction if: (1) a lesser included offense is identified within the charged offense; and (2) a rational jury could find the defendant guilty of the lesser-included offense but not guilty of the greater offense. United States v. Johnson, 637 F.2d 1224, 1233-34 (9th Cir. 1980); Fed.R.Crim.P. 31(c). We do not believe the second requirement was met. Involuntary man slaughter is an unintentional homicide. See United States v. Keith, 605 F.2d 462 (9th Cir. 1979). Skinner argues that the shooting was unintentional, because it was a lawful act of self-defense committed in an unlawful manner because Skinner used excessive force in defending himself. This “imperfect self-defense” theory could reduce an intentional killing by use of excessive force from murder to voluntary manslaughter, but not to involuntary manslaughter. Torcía, Wharton's Criminal Law § 165 (14th Ed. 1979); LaFave and Scott, Criminal Law, § 53, p. 397, § 77, p. 583-84 (1st Ed. 1972). A killing committed in self-defense is, nevertheless, an intentional killing. If a rational jury found that Skinner used excessive force in shooting the victim, so that self-defense was not a complete defense, then it would have had to convict him either of murder or of voluntary manslaughter. It could not acquit him of those intentional offenses, but convict him of the unintentional offense of involuntary manslaughter." }, { "docid": "13084802", "title": "", "text": "court committed error by not instructing the jury on lesser included offenses. This argument founders on two grounds: first, trial counsel did not ask the court to instruct the jury on lesser included offenses; and two, he told the court, after the charge had been given, that he had no objections to it. Federal Rule of Criminal Procedure 30 requires the parties to raise objections to the instructions before the jury retires to consider its verdict. A “defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.” Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844 (1973). A defendant, however, also is entitled to forgo the instruction for strategic reasons. Look v. Amaral, 725 F.2d 4, 9 (1st Cir.1984). In this case, the government wanted to have lesser included offense instructions given on Counts I and II, which charged that death resulted from the conspiracy and assault against Figueroa Serrano, but the court denied the request. The court may have concluded that defense counsel intentionally did not ask for such instructions in the hope that, if he raised doubt about whether Figueroa Serrano’s death resulted from the assault, de fendants would be acquitted on Counts I and II, rather than convicted on lesser charges. Thus, the omission may have been the result of a strategic choice by defense counsel. In any event, the court did not err in not giving lesser included offense instructions when defense counsel had neither requested them nor objected when they had been omitted from the charge. VI. CONCLUSION We hold that the statutes under which appellants were convicted are applicable to Puerto Rico, and that the court, therefore, had jurisdiction over appellants. Because Puerto Rico is a sovereign separate from the United States for purposes of double jeopardy, these prosecutions were not barred by prior convictions in Puerto Rico Superior Court. With respect to appellants’ representation by the same counsel, even though the court’s inquiry into" }, { "docid": "13261986", "title": "", "text": "“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)(l)-(2). A state court decision is “contrary to” clearly established federal law if it reaches a conclusion opposite that of the Supreme Court on a question of law, or reaches a decision contrary to the Supreme Court on materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court decision involves an “unreasonable application” when it identifies the correct legal rule, but unreasonably applies it to the facts. Id. at 407, 120 S.Ct. 1495. “A state court’s application of clearly established federal law must be objectively unreasonable, not merely incorrect, to warrant the granting of a writ of habeas corpus.” Jackson v. Norris, 651 F.3d 923, 925 (8th Cir.2011) (citing Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002)). Arnold contends that he was denied effective assistance of counsel in violation of his Sixth Amendment rights because his counsel failed to request a jury instruction on false imprisonment as a lesser-included offense of kidnapping. To prevail, he must establish that counsel’s performance was both deficient and prejudicial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). That is, counsel’s performance must have fallen below “an objective standard of reasonableness,” and as a consequence Arnold must have been deprived of a fair trial. Id. at 687-88, 104 S.Ct. 2052. The Missouri Court of Appeals determined that under Missouri law Arnold’s trial counsel did not act unreasonably by failing to request the lesser-included offense instruction, because Arnold was not entitled to such an instruction. There is “no obligation to instruct the jury on a lesser-included offense unless a basis exists for acquitting the defendant of the greater offense charged and convicting him of the lesser-included offense.” Arnold v. State, 303 S.W.3d 567, 569 (Mo.Ct. App.2009) (quoting Becker v. State, 260 S.W.3d 905, 910 (Mo.Ct.App.2008)). The court held that no construction of the facts would have supported a conviction on the" }, { "docid": "14408329", "title": "", "text": "131 F.3d at 1357; see also, e.g., Ellis v. Hargett, 302 F.3d 1182, 1187-89 (10th Cir.2002) (holding appellate counsel was not objectively unreasonable in failing to raise a claim where cases “on the books” at the time of direct appeal indicated that the OCCA would not have been receptive to a contrary argument), cert. denied, — U.S. -, 123 S.Ct. 1361, 155 L.Ed.2d 203 (2003); Bullock, 297 F.3d at 1051-52 (rejecting a claim that the trial attorney should have objected to the victims’ hearsay testimony, based on a case the state appellate court decided after the petitioner’s trial and noting that effective representation does not require clairvoyance). For the foregoing reasons, Spears is not entitled to habeas relief on this claim. d. Trial Counsel Failed to Object to Spears’ Out-of-Court Statement Implicating Powell Given our conclusion above that the OCCA reasonably determined that any Bruton error was harmless, we hold that the OCCA’s decision denying Powell relief on his contention that his trial attorney should have objected to the State’s introduction of Spears’ out-of-court statement implicating him was also a reasonable application of established federal law. See supra Section III.B.1.a; Powell, 906 P.2d at 780. e. Trial Counsel Failed to Request Jury Instructions on Voluntary Intoxication and Diminished-Capacity Manslaughter This same fate falls upon Powell’s claim that his trial counsel should have request ed instructions on a voluntary-intoxication defense and the lesser offense of diminished-capacity manslaughter. We have already concluded that the state appellate court reasonably held that the evidence did not support giving these instructions. See supra Section III.B.3. For the same reasons, the OCCA reasonably denied relief on these ineffective-assistance claims. See Powell, 906 P.2d at 780; see also id. at 777-78; cf. Le, 311 F.3d at 1026-27 (holding that defense counsel was not ineffective for failing to request a self-defense instruction, where the evidence did not permit such instruction under Oklahoma law). f. Cumulative Prejudice Because the sum of various zeroes remains zero, the claimed prejudicial effect of their trial attorneys’ cumulative errors does not warrant habeas relief. See, e.g., Hawkins v. Hannigan, 185 F.3d 1146, 1158" }, { "docid": "16259284", "title": "", "text": "possible sentence he could face in the event he pled guilty; nor did he understand the rights he was giving up by pleading guilty, including the right to a lesser-included offense instruction on manslaughter and a voluntary intoxication instruction. She failed to inform the trial judge of her belief in Allen’s incompetency because a jury had found him competent and, in any event, it was Allen’s wish to plead guilty. She wanted to take the case to trial. She believed Allen had a viable defense of voluntary intoxication and an opportunity for an instruction on manslaughter as a lesser-included offense. Notwithstanding her reversal on Allen’s competence, Baumann averred numerous times in her testimony that her primary objective in filing an appeal was to undo the death penalty, not the conviction: Q. You wanted an appeal? A. Yes. Q. Because you needed to get out from underneath the death penalty, right? Your client did at least? A. Yes. Q. You wanted to advance that goal, correct? A. Yes. I never thought he should have gotten the death penalty in the first place. He shouldn’t have it now. (R. Vol. 2 at 43.) She later added: Bottom line was I didn’t think the man should have gotten the death penalty and I wish that some court along the line would recognize that fact and give the man some relief. He shouldn’t have gotten the death penalty the first time, he shouldn’t have gotten it the second time. (Id. at 57.) II. Standard of Review We defer to a state court’s legal conclusions if it has previously addressed a habe-as claim on the merits. Our deference is guided by the following: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim (1) resulted in a decision ■ that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the" }, { "docid": "4011874", "title": "", "text": "to consult with his lawyer and prevented him from having a rational, as well as factual, understanding of the proceedings against him. Thus, we reject Leach’s argument that he was forced to proceed to trial in violation of his right to due process. We also reject Leach’s contention that defense counsel’s performance was constitutionally ineffective due to the attorney’s failure to request a jury instruction on the crime of endangering safety by conduct regardless of life, a lesser included offense of the crime of attempted murder. In order to establish a claim of ineffective assistance of counsel, Leach must demonstrate that “counsel’s representation fell below an objective standard of reasonableness,” Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), and that “there is a reasonable probability that, absent [counsel’s] errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695, 104 S.Ct. at 2068. We need not determine whether counsel’s failure to request the lesser included offense instruction was objectively unreasonable because, even if it were, Leach has failed to demonstrate a reasonable probability that the jury would not have convicted him of attempted first-degree murder had such an instruction been given. Under Wisconsin law, “[t]he distinguishing element between attempted first-degree murder and endangering safety by conduct regardless of life is the defendant’s intent to kill the victim.” Walker v. State, 92 Wis.2d 690, 693, 286 N.W.2d 2, 4 (Ct.App.1979), aff'd, 99 Wis.2d 687, 299 N.W.2d 861 (1981). We have previously determined in this opinion that the prosecution’s evidence on the attempted murder charge was overwhelming, effectively precluding any doubt, let alone a reasonable doubt, that Leach did not intend to kill Stanley Blalock. Thus, even if defense counsel had proffered an instruction on endangering safety by conduct regardless of life and the trial court had given the instruction in its charge to the jury, we are convinced that the jury would have nonetheless convicted Leach of the greater crime of attempted murder as the evidence of guilt of attempted murder was overwhelming. Accordingly, we hold that Leach has failed to" }, { "docid": "1846881", "title": "", "text": "offenses. In these circumstances, we are convinced that Davis’s contention that she did not feel the jury would convict of murder and did not want to give the jury the option of convicting of the lesser offense is a “post-hoc rationalization” rather than a genuine account of her decision-making process. Wiggins, 539 U.S. at 526-27, 123 S.Ct. 2527. We are further convinced that Davis’s performance in failing to request a lesser-included offense instruction fell below an objective standard of reasonableness, and that the state court’s conclusion to the contrary was an unreasonable application of Strickland. A Failure to Put Richards’s Medical Records into Evidence The district court also concluded that Davis was ineffective for not submitting Richard’s Veterans Administration medical records into evidence. Those records would have established Richards’s ailments, about which he testified at trial and which included frequent chest pains treated with nitroglycerin and an inability to walk more than one-half block without stopping. In addition, the records would have shown that Richards had triple bypass surgery in June 2000 and a cerebrovascular accident in 2000, which left him with a left-sided weakness. These records, the district court concluded, would have been important, credible evidence— Richards’s own credibility was suspect because he admitted to doing crack and to lying to the police — that Richards’s attack on Baker was not as described by Brown and Qualls. In her affidavit, Davis stated “I could not present a medical records ‘alibi’ with clear conscious [sic] based on my duty as a lawyer.” At the evidentiary hearing, Davis stated that she decided not to submit Richards’s medical records into evidence because she “didn’t want to run the risk that the jury would say, well, on the one hand he’s feeble and has bad, you know, bad medical conditions, but on the other hand, he’s strong enough, you know, to do this.” Davis also testified that she was concerned that if she did, Richards’s jail disciplinary records would, as a consequence, be allowed into evidence. Although the State argues that Davis had a strategic reason for not introducing the medical records, after" }, { "docid": "4273419", "title": "", "text": "100 S.Ct. 2382 (quoting Keeble, 412 U.S. at 212-13, 93 S.Ct. 1993). Thus, even though juries are obligated “ ‘as a theoretical matter’ ” to acquit if they do not find every element of a crime, there is a “ ‘substantial risk that the jury’s practice will diverge from theory’ ” when it is not presented with the option of convicting of a lesser offense instead of acquitting outright. Id. (quoting Keeble, 412 U.S. at 212, 93 S.Ct. 1993). By conceding theft but not requesting a theft instruction, Breakiron’s counsel exposed him to that “substantial risk,” and the record reveals that he had no strategic reason for doing so. Nor could there have been any. Counsel did not pursue an all-or-nothing strategy at trial by arguing that Breakiron had not committed any crime. Instead, he conceded that Breakiron had committed theft, but neglected to request the theft instruction that not only would have been consistent with that theory of defense but would have given the jury an opportunity to effectuate it. Under the circumstances, no reasonable counsel would have failed to request that instruction. See Richards v. Quarterman, 566 F.3d 553, 569-70 (5th Cir.2009) (holding that failure to request a lesser-included-offense instruction consistent with theory of the defense “fell below an objective standard of reasonableness”); cf. Lopez v. Thurmer, 594 F.3d 584, 588 (7th Cir.2010) (holding that decision not to request lesser-included-offense instruction “appears to have been strategic” where instruction would have been inconsistent with defendant’s testimony that he “was innocent of any crime”). 2. Prejudice To show prejudice, Breakiron must establish that there is a reasonable probability that the jury would have convicted him of theft only and not of robbery if counsel had requested the theft instruction to which he was entitled. The Pennsylvania Supreme Court held that Breakiron had not made that showing. Thus, under AEDPA, we may not grant relief on this claim unless that ruling either was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[.J” 28 U.S.C. § 2254(d)(1). If we" }, { "docid": "17362030", "title": "", "text": "instructed solely on first-degree murder and the insanity defense. Although Moormann’s counsel in the direct appeal of his conviction argued the trial court erred in not sua sponte instructing the jury on the lesser-included offenses of second-degree murder and manslaughter, the Arizona Supreme Court rejected this argument. Moormann I, 744 P.2d at 688. It concluded Moormann had waived his constitutional right to the lesser-included-offense instructions, and that the decision not to request those instructions was strategic. Id. The court stated: While the parties were discussing jury instructions, the trial judge said he was inclined to give the jury an option of convicting Moorman of second degree murder or manslaughter instead of first degree murder. In response, Moor-man’s attorney said he and his client had discussed the matter and decided that they wanted the jury instructed only on first degree murder. Moorman was not present when this record was made. In his brief on appeal, Moorman claims that he does not recall any discussion of lesser-included offenses or any agreement with his lawyer on the issue. Moreover, Moormann contends that even if he objected to the giving of lesser-included instructions, the trial court had an obligation to give the instructions under Beck v. Alabama [447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) ]. We need not review the record in depth to determine whether the evidence supported the lesser-included instructions. We see no reason why a murder defendant cannot knowingly waive his constitutional right to lesser-included instructions. Apparently, the decision not to request instructions on second degree murder or manslaughter was strategic. We have no evidentiary record on Moormann’s claims that his attorney never discussed the matter with him. We therefore do not decide that issue. Id. at 687-88 (citations omitted). In these habeas proceedings, Moormann has submitted a declaration by his trial counsel to support his threshold contention that trial counsel did not act in a reasonably competent fashion when he declined the court’s offer to instruct the jury on the lesser-includeds. In his declaration, trial counsel stated there was no strategic decision to forgo the instructions and" }, { "docid": "17362031", "title": "", "text": "Moreover, Moormann contends that even if he objected to the giving of lesser-included instructions, the trial court had an obligation to give the instructions under Beck v. Alabama [447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) ]. We need not review the record in depth to determine whether the evidence supported the lesser-included instructions. We see no reason why a murder defendant cannot knowingly waive his constitutional right to lesser-included instructions. Apparently, the decision not to request instructions on second degree murder or manslaughter was strategic. We have no evidentiary record on Moormann’s claims that his attorney never discussed the matter with him. We therefore do not decide that issue. Id. at 687-88 (citations omitted). In these habeas proceedings, Moormann has submitted a declaration by his trial counsel to support his threshold contention that trial counsel did not act in a reasonably competent fashion when he declined the court’s offer to instruct the jury on the lesser-includeds. In his declaration, trial counsel stated there was no strategic decision to forgo the instructions and that Moormann did not understand the proceedings: I do not remember the details regarding the discussions Robert and I had on the lesser included offense instructions. But I do know that I did not make a strategic decision to not request those instructions. I tried talking to Robert about the instructions, but Robert did not understand legal decisions or the consequences of those decisions. When I discussed legal issues with Robert, I was not sure he understood what we were talking about, or even the meaning of the words I used. But the judge had earlier found Robert competent to stand trial, and as a result, I did not think there was anything I could do about Robert’s inability to understand much of what was going on. I believed Robert suffered delusions and as a result, did not always understand the content of what he was saying, or what I was saying. Moormann asserts this declaration demonstrates that trial counsel unreasonably re lied on Moormann’s preferences concerning the giving of lesser-included-offense instructions, even though he" }, { "docid": "13261987", "title": "", "text": "counsel failed to request a jury instruction on false imprisonment as a lesser-included offense of kidnapping. To prevail, he must establish that counsel’s performance was both deficient and prejudicial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). That is, counsel’s performance must have fallen below “an objective standard of reasonableness,” and as a consequence Arnold must have been deprived of a fair trial. Id. at 687-88, 104 S.Ct. 2052. The Missouri Court of Appeals determined that under Missouri law Arnold’s trial counsel did not act unreasonably by failing to request the lesser-included offense instruction, because Arnold was not entitled to such an instruction. There is “no obligation to instruct the jury on a lesser-included offense unless a basis exists for acquitting the defendant of the greater offense charged and convicting him of the lesser-included offense.” Arnold v. State, 303 S.W.3d 567, 569 (Mo.Ct. App.2009) (quoting Becker v. State, 260 S.W.3d 905, 910 (Mo.Ct.App.2008)). The court held that no construction of the facts would have supported a conviction on the charge of false imprisonment and an acquittal on kidnapping. Id. at 568. Either Fields was free to go, as Arnold testified, in which case he was guilty of neither offense, or she was being used as a hostage or shield, in which case he was guilty of kidnapping and not false imprisonment. Id. Arnold’s counsel was therefore not ineffective for failing to request an instruction to which Arnold was not entitled. Id. at 569. We do not second-guess the decision of a Missouri state court on Missouri law. Bounds v. Delo, 151 F.3d 1116, 1118 (8th Cir.1998) (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”) (quoting Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)). Furthermore, even if the failure to give an instruction did constitute a violation of state law, habeas relief can be granted only if the failure “amounted to ‘a fundamental defect which inherently results in a complete miscarriage of justice, [or] an omission inconsistent with the rudimentary" }, { "docid": "1846880", "title": "", "text": "in consideration of both the district court’s opportunity to observe the witnesses and assess their credibility and the deference due to the state court’s findings under AEDPA, we agree with the district court that Davis’s failure to request a lesser-included offense instruction was deficient and not a strategic decision. In her affidavit and again at the evidentiary hearing Davis stated that such a request would have been frivolous. A request for a lesser-included offense instruction on the basis that another assault, subsequent to that described by Brown, Qualls, and Richards, caused Baker’s death would clearly not have been frivolous, and any doubt as to whether it was supported by the evidence is due to Davis’s failure to introduce exculpatory evidence as discussed above. This is true even though Richards asserted self-defense: it would be entirely possible for the jury to believe that Richards did not act in self-defense but also believe that he did not kill Baker. Davis’s testimony strongly suggests that she both failed to recognize this possibility and misunderstood the law governing lesser-included offenses. In these circumstances, we are convinced that Davis’s contention that she did not feel the jury would convict of murder and did not want to give the jury the option of convicting of the lesser offense is a “post-hoc rationalization” rather than a genuine account of her decision-making process. Wiggins, 539 U.S. at 526-27, 123 S.Ct. 2527. We are further convinced that Davis’s performance in failing to request a lesser-included offense instruction fell below an objective standard of reasonableness, and that the state court’s conclusion to the contrary was an unreasonable application of Strickland. A Failure to Put Richards’s Medical Records into Evidence The district court also concluded that Davis was ineffective for not submitting Richard’s Veterans Administration medical records into evidence. Those records would have established Richards’s ailments, about which he testified at trial and which included frequent chest pains treated with nitroglycerin and an inability to walk more than one-half block without stopping. In addition, the records would have shown that Richards had triple bypass surgery in June 2000 and a cerebrovascular" }, { "docid": "1846878", "title": "", "text": "any reasoned trial strategy. Richards, 578 F.Supp.2d at 868. In reaching this conclusion, the district court found that the state trial court would have committed error in refusing such an instruction, and that, based on her testimony at the evidentiary hearing, Davis erroneously believed that a lesser included offense instruction is not available unless the State raises the elements of the lesser offense. Under Texas law, there is a two-step test to determine whether a lesser included offense instruction should be given: first, the lesser included offense must be within the proof necessary to establish the offense charged; second, there must be some evidence in the record that if the defendant is guilty, he is guilty only of the lesser offense. Alexander v. McCotter, 775 F.2d 595, 600 (5th Cir.1985) (quoting Johnson v. State, 623 S.W.2d 654, 657 (Tex.Crim.App.1981)). An assault occurs when a person “(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse ... or (3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.” Tex. Penal Code § 22.01(a)(1). The assault is aggravated when, among other circumstances, the person “(1) causes serious bodily injury to another, including the person’s spouse; or (2) uses or exhibits a deadly weapon during the commission of the assault.” Id. § 22.02(a). In this case, although the State does not dispute that aggravated assault is a lesser included offense of murder, it argues that there was no evidence that Richards was guilty only of the lesser charge because Richards admitted to intentionally hitting Baker and, under Richards self-defense theory, he is guilty of nothing. Further, the State maintains, Davis’s decision not to request a lesser included offense instruction was a conscious and informed decision: Davis testified at the evidentiary hearing that she did not think the State had enough evidence to convict Richards, and she did not want the jury to be able to convict him of the lesser charge. Once again, after a careful examination of the record, and" }, { "docid": "1846876", "title": "", "text": "has previously refused to allow the omission of cumulative testimony to amount to ineffective assistance of counsel.”). The fact that there is “some overlap” among the excluded testimony and what came out trial will not necessarily preclude relief, however. Harrison v. Quarterman, 496 F.3d 419, 426 (5th Cir.2007); see also id. (citing Stewart v. Wolfenbarger, 468 F.3d 338, 359 (6th Cir.2006)) (finding additional alibi testimony was not cumulative where it “would have added a great deal of substance and credibility” to the defendant’s alibi defense). Here, while we agree with the State that Davis did present some of the evidence that the district court focused on, Davis failed to meaningfully bring out the significant differences between the version of the incident described by the prosecution’s key eyewitnesses, Brown and Qualls (and Richards himself), and the attack as described by Baker to Oakley and Thomas — including the time, the motive, and whether Baker was asleep. We agree with the district court that, even applying a strong presumption to the contrary and giving appropriate deference to the state court’s factual findings, Davis’s failure to bring in this evidence was objectively unreasonable under prevailing professional norms and was not the product of a “conscious and informed decision on trial tactics and strategy.” Virgil, 446 F.3d at 608 (quotation omitted); see also Moore, 194 F.3d at 611 (“Counsel’s decision to exclude [exculpatory evidence], which produced no conceivable benefit to the defense and prejudiced Moore by precluding reliance upon a plausible alternative defensive theory that was supported by other evidence in the record, was professionally unreasonable.”). Given the seriousness of Davis’s unreasoned failure to present this powerful exculpatory evidence, we also agree that the state court’s decision was an “unreasonable application” of Strickland. 28 U.S.C. § 2254(d). 3. Failure to Request a Lesser-Included Offense Instruction The district court found that, given the opportunity, there is a “probability that the jury would not have convicted Richards of murder if it had been given the option of convicting him of aggravated assault,” and that Davis’s failure to request such an instruction was not the result of" }, { "docid": "4273420", "title": "", "text": "reasonable counsel would have failed to request that instruction. See Richards v. Quarterman, 566 F.3d 553, 569-70 (5th Cir.2009) (holding that failure to request a lesser-included-offense instruction consistent with theory of the defense “fell below an objective standard of reasonableness”); cf. Lopez v. Thurmer, 594 F.3d 584, 588 (7th Cir.2010) (holding that decision not to request lesser-included-offense instruction “appears to have been strategic” where instruction would have been inconsistent with defendant’s testimony that he “was innocent of any crime”). 2. Prejudice To show prejudice, Breakiron must establish that there is a reasonable probability that the jury would have convicted him of theft only and not of robbery if counsel had requested the theft instruction to which he was entitled. The Pennsylvania Supreme Court held that Breakiron had not made that showing. Thus, under AEDPA, we may not grant relief on this claim unless that ruling either was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[.J” 28 U.S.C. § 2254(d)(1). If we determine that the Pennsylvania Supreme Court’s ruling was contrary to or an unreasonable application of Strickland, then we still must review the claim de novo to determine whether Breakiron is entitled to relief. See Bronshtein v. Horn, 404 F.3d 700, 724 (3d Cir.2005). The Pennsylvania Supreme Court’s prejudice analysis reads in relevant part: We find that even if this argument had merit and that trial counsel could have requested a theft and a robbery jury charge, Breakiron cannot establish that he was prejudiced. The charge of the trial court instructed the jury not to return a guilty verdict of robbery without first finding that a theft had occurred. (N.T. at 1352-54) Moreover, trial counsel argued to the jury during closing argument that there could be no robbery, but solely a theft because Breakiron took money only after Ms. Martin was dead. (N.T. at 1312, 1320-21) The jury rejected this argument and convicted Breakiron of robbery. In Breakiron I, we held that the evidence supported this verdict because there was no question that Breakiron took the" }, { "docid": "4273418", "title": "", "text": "and it is apparent from the record that counsel did not have a strategic reason for not requesting a theft instruction. When asked at the PCRA hearing whether he ever considered doing so, he answered merely “I don’t believe so.” (N.T. PCRA 7/17/97 PM at 70; A. 1892.) Thus, the record establishes that counsel’s decision not to request a theft instruction was not the kind of strategic choice entitled to deference under Strickland. See Thomas v. Varner, 428 F.3d 491, 499-500 (3d Cir.2005). The record also establishes that it was objectively unreasonable. Counsel’s sole theory of defense to the robbery charge was that Breakiron had committed a theft but not a robbery. Without a theft instruction, the jury was left with only two choices — conviction of robbery or outright acquittal. In such all-or-nothing situations, “ ‘[wjhere one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.’ ” Beck, 447 U.S. at 634, 100 S.Ct. 2382 (quoting Keeble, 412 U.S. at 212-13, 93 S.Ct. 1993). Thus, even though juries are obligated “ ‘as a theoretical matter’ ” to acquit if they do not find every element of a crime, there is a “ ‘substantial risk that the jury’s practice will diverge from theory’ ” when it is not presented with the option of convicting of a lesser offense instead of acquitting outright. Id. (quoting Keeble, 412 U.S. at 212, 93 S.Ct. 1993). By conceding theft but not requesting a theft instruction, Breakiron’s counsel exposed him to that “substantial risk,” and the record reveals that he had no strategic reason for doing so. Nor could there have been any. Counsel did not pursue an all-or-nothing strategy at trial by arguing that Breakiron had not committed any crime. Instead, he conceded that Breakiron had committed theft, but neglected to request the theft instruction that not only would have been consistent with that theory of defense but would have given the jury an opportunity to effectuate it. Under the circumstances, no" } ]

[ { "docid": "13731476", "title": "", "text": "to spent lead components used in a recycling process: spent materials “are solid wastes when reclaimed.” 40 C.F.R. § 261.2(c)(3) and Table 1 (1992). ILCO argues that it has never “discarded” the plates and groups and, therefore, the material it recycles is not “solid waste” as defined in RCRA § 6903(27). The lead plates and groups are, no doubt, valuable feedstock for a smelting process. Nevertheless, EPA, with congressional authority,’ promulgated regulations that classify these materials as “discarded solid waste.” Somebody hás discarded the battery in which these components are found. This fact does not change just because a reclaimer has purchased or finds value in the components. The regulations- reflect EPA’s policy decision that spent batteries, including their lead components, became “part of the waste disposal problem,” AMC I, 824 F.2d at 1186, when the original consumer discarded the battery. It is unnecessary to read into the word “discarded” a congressional intent that the waste in question must finally and forever be discarded, as ILCO seems to argue. It is perfectly reasonable for EPA to assume Congress meant “discarded once.” Were we to rule otherwise, waste such as these batteries would arguably be exempt from regulation under RCRA merely because they are potentially recyclable. Previously discarded solid waste, although it may at some point be recycled, nonetheless remains solid waste. See American Petroleum, 906 F.2d at 741 (holding that “discarded” material sent by steel mills to a metal recovery facility remained a solid waste in the hands of the metal reeoverer); and American Mining Congress v. EPA, 907 F.2d 1179, 1186-87 (D.C.Cir.1990) (AMC II) (materials awaiting recycling may be classified as “discarded,” whether the materials were discarded by one user and sent to another for recycling, or stored before recycling by the person who initially discarded them in land disposal units). Compare AMC I, 824 F.2d at 1187, n. 14 (used oil collected and recycled by a reclaimer is “discarded” and subject to regulation) with 824 F.2d at 1184, 1190 (“materials retained [by the generating industry] for immediate reuse” or “passing in a continuous stream or flow from one" } ]

[ { "docid": "15168420", "title": "", "text": "1177 (D.C.Cir.1987) (“AMC”). The issue in AMC was whether the EPA could, under the RCRA, treat as “solid wastes” “materials that are recycled and reused in an ongoing manufacturing or industrial process.” Id. at 1186. We held that it could not because [t]hese materials have not yet become part of the waste disposal problem; rather, they are destined for beneficial reuse or recycling in a continuous process by the generating industry itself. Id. Materials subject to such a process were not “discarded” because they were never “disposed of, abandoned, or thrown away.” Id. at 1193. AMC is by no means dispositive of EPA’s authority to regulate K061 slag. Unlike the materials in question in AMC, K061 is indisputably “discarded” before being subject to metals reclamation. Consequently, it has “become part of the waste disposal problem”; that is why EPA has the power to require that K061 be subject to mandatory metals reclamation. See 53 Fed.Reg. 11,752-53 (recognizing this point). Nor does anything in AMC require EPA to cease treating K061 as “solid waste” once it reaches the metals reclamation facility. K061 is delivered to the facility not as part of an “ongoing manufacturing or industrial process” within “the generating industry,” but as part of a mandatory waste treatment plan prescribed by EPA. As such, the resulting slag appears to remain within the scope of the agency’s authority as “sludge from a waste treatment plant.” 42 U.S.C. § 6903(27); see also 42 U.S.C. § 6903(34) (defining “treatment” as “any method, technique, or process ... designed to change the physical [or] chemical ... character or composition of any hazardous waste so as to ... render such waste ... amendable for recovery____”). Because the EPA mistakenly concluded that our case law left it no discretion to interpret the relevant statutory provisions, we are constrained to remand. See Phillips Petroleum Co. v. FERC, 792 F.2d 1165, 1171 (D.C.Cir.1986). We add, however, that the scope of the agency’s interpretive discretion on remand is far from unbounded. First, although we conclude that Congress has not spoken precisely on the question of EPA’s authority to regulate the" }, { "docid": "22187072", "title": "", "text": "wastes. Further, the Committee believes that this legislation is necessary if other environmental laws are to be both cost and environmentally effective. At present the federal government is spending billions of dollars to remove pollutatns [sic] from the air and water, only to dispose of such pollutants on the land in an environmentally unsound manner. The existing methods of land disposal often result in air pollution, subsurface leachate and surface run-off, which affect air and water quality. This legislation will eliminate this problem and permit the environmental laws to function in a coordinated and effective way. H.R.Rep. No. 94-1491, Part I, at 4 (1976), reprinted in 1976 U.S.C.C.A.N. at 6241-42. Where, as here, the residue is discarded and burned, the legislative history indicates that the disposal of such material is within the meaning of “solid waste” under RCRA. B. The majority also relies on extra-circuit cases to support its conclusion that the post-harvest crop residue is not “discarded.” These cases, however, are inapplicable to the interpretation of “solid waste” at issue here. Most notably, those cases interpret the meaning of “solid waste” in considering the validity of hazardous waste regulations promulgated by the Environmental Protection Agency (“EPA”). See AMC I, 824 F.2d at 1178 (considering whether the EPA exceeded its regulatory authority by including “in process secondary materials” in its definition of solid waste); American Mining Cong. v. U.S. EPA, 907 F.2d 1179, 1181-82 (D.C.Cir.1990) (AMC II) (considering whether the EPA exceeded its regulatory authority in treating six wastes generated from metal smelting operations as “hazardous” waste); United States v. ILCO, Inc., 996 F.2d 1126, 1130 (11th Cir.1993) (considering whether “lead parts, which have been reclaimed from spent car and truck batteries for recycling purposes, are exempt from[the EPA’s] regulation under RCRA”). Although RCRA defines “solid waste” to cover all types of “discarded materials,” see 42 U.S.C. § 6903(27), the EPA’s RCRA regulations at issue in AMC I, AMC II and ILCO have a special definition of “solid waste,” see 40 C.F.R. § 261.2(a)(1), which “applies only to wastes that also are hazardous for purposes of the regulations implementing Subtitle" }, { "docid": "13731477", "title": "", "text": "to assume Congress meant “discarded once.” Were we to rule otherwise, waste such as these batteries would arguably be exempt from regulation under RCRA merely because they are potentially recyclable. Previously discarded solid waste, although it may at some point be recycled, nonetheless remains solid waste. See American Petroleum, 906 F.2d at 741 (holding that “discarded” material sent by steel mills to a metal recovery facility remained a solid waste in the hands of the metal reeoverer); and American Mining Congress v. EPA, 907 F.2d 1179, 1186-87 (D.C.Cir.1990) (AMC II) (materials awaiting recycling may be classified as “discarded,” whether the materials were discarded by one user and sent to another for recycling, or stored before recycling by the person who initially discarded them in land disposal units). Compare AMC I, 824 F.2d at 1187, n. 14 (used oil collected and recycled by a reclaimer is “discarded” and subject to regulation) with 824 F.2d at 1184, 1190 (“materials retained [by the generating industry] for immediate reuse” or “passing in a continuous stream or flow from one production process to another” are not “discarded” within the meaning of RCRA). Therefore, we find these batteries and their contents are “discarded” within the everyday sense of the word. Their secondary character as recyclable material is irrelevant to that determination. See AMC I, 824 F.2d at 1192-93 and AMC II, 907 F.2d at 1186-87. We have found nothing in the language of the statute, and ILCO has brought forth nothing from the legislative history to show that EPA’s policy choice is not one Congress would have sanctioned. See AMC II, 907 F.2d at 1186. On the contrary, application of these regulations to spent batteries and parts generated by consumers comports with Congress’ intent in RCRA to address the problems posed by hazardous waste. The House Committee explained: It is not only the waste by-products of the nation’s manufacturing processes with which the committee is concerned: but also the products themselves once they have served them intended purposes and are no longer wanted by the consumer. For these reasons the-term, discarded materials is used to identify" }, { "docid": "19131456", "title": "", "text": "industry itself,” such as the recycled materials there. Id. at 1186 (emphasis omitted); accord Ass’n of Battery Recyclers, Inc. v. EPA 208 F.3d 1047, 1056 (D.C.Cir.2000) (“[A]t least some of the secondary material EPA seeks to regulate as solid waste is destined for reuse as part of a continuous industrial process and thus is not abandoned or thrown away. Once again, ‘by regulating in-process secondary materials, EPA has acted in contravention of Congress’ intent’ because it has based its regulation on an improper interpretation of ‘discarded’ and an incorrect reading of our AMC I decision.” (quoting AMC I, 824 F.2d at 1193)). On the flip side, in Safe Food & Fertilizer v. EPA 350 F.3d 1263 (D.C.Cir.2003), we upheld as permissible under Chevron step 2 EPA’s interpretation of the “solid waste” definition to exclude as not “discarded” industrial process byproducts recycled to produce zinc fertilizers as well as the fertilizers themselves. Id. at 1269-71; see also Am. Mining Cong. v. EPA 907 F.2d 1179, 1186 (D.C.Cir.1990) (“Nothing in AMC [I] prevents the agency from treating as ‘discarded’ the wastes at issue in this case, which are managed in land disposal units that are part of wastewater treatment systems.”) (emphases omitted). None of the cited cases, however, involved fuels burned for energy recovery so as to come under section 6924(q), which, as we explained in AMC I, “deem[s]” the materials burned for energy recovery to be “ ‘discarded’ and therefore within the statutory definition of ‘solid waste.’ ” AMC I, 824 F.2d at 1189; see Horsehead Res. Dev. Co., 16 F.3d at 1263 (“AMC I involved an altogether different facet of waste disposal governed by a different statutory section, i.e., the scope of the RCRA term ‘solid waste’.... ”). Outside the section 6924(q) energy recovery context — as the cited cases demonstrate — materials to be reused may be reasonably — or even necessarily— characterized as not “waste” because they are not “discarded.” See AMC I, 824 F.2d at 1189 (“This specific measure did not, however, revamp the basic definitional section of the statute.”). But not under section 6924(q), which provides" }, { "docid": "22187074", "title": "", "text": "C of RCRA.” 40 C.F.R. § 261.1(b)(1). Thus, the regulatory definition considered in AMC I, AMC II and ILCO is significantly narrower than the statutory definition at issue here. Accordingly, I do not find these cases persuasive in our determination of whether the post-harvest crop residue has been “discarded.” C. Even if I were to agree with the majority’s conclusion that the extra-circuit cases constitute persuasive authority, Maj. Op. at 1043, I would nonetheless conclude that there is a genuine factual dispute as to whether the post-harvest crop residue has been discarded. I would therefore reverse the summary judgment in favor of the Growers. Relying on the analysis in AMC I, AMC II and ILCO, the majority reasons that as long as the residue “provides benefits for the Growers,” Maj. Op. at 1044, it has not been “discarded” under RCRA. This unnecessarily narrows the definition of “discarded material.” The cases do not support the majority’s proposition that the- mere recognition of some beneficial use negates the fact that materials have been “discarded” under RCRA. The cases cited by the majority distinguish between those materials extracted and immediately reused in an ongoing process and those materials discarded and only later put to beneficial use. AMC I merely held that materials extracted from primary metals that are recaptured and recycled as part of an ongoing industrial process are not “solid waste” under the EPA’s regulatory definition of that term. That same court later clarified that AMC I’s “holding concerned only materials that are ‘destined for immediate reuse in another phase of the industry’s ongoing production process....’” AMC II, 907 F.2d at 1186 (quoting AMC I, 824 F.2d at 1185) (emphasis in original). The D.C. Circuit also rejected the claim that “potential reuse of a material prevents the [EPA] from classifying it as ‘discarded.’ ” Id.; see also ILCO, 996 F.2d at 1132 (noting that “[p]reviously discarded solid waste, although it may at some point be recycled, nonetheless remains solid waste”); Am. Petroleum Inst. v. U.S. EPA, 906 F.2d 729, 741 (D.C.Cir.1990) (holding that slag residue resulting from the production of steel was" }, { "docid": "19131455", "title": "", "text": "quite a different level of protection — and EPA’s answer was merely that it “expects” not. See 63 Fed.Reg. at 33,-783-84. In support of its rationale as expressed in the 1998 Rule — that hazardous wastes recycled for energy recovery are excluded from section 6924(q)’s “standard” mandate — EPA relies on Circuit precedent that has upheld EPA’s characterization of recycled materials as not “discarded” and therefore not “waste” subject to RCRA hazardous waste regulation. In AMC I, for example, we concluded at Chevron step 1 that RCRA’s “solid waste” definition precludes EPA from regulating materials produced in the oil refining process — to be recycled through reintroduction at the appropriate stage of the refining process— because the Congress “clearly and unambiguously expressed its intent that ‘solid waste’ (and therefore EPA’s regulatory authority) be limited to materials that are ‘discarded’ by virtue of being disposed of, abandoned, or thrown away.” 824 F.2d at 1193. Accordingly, the term’s plain meaning excludes materials that “are destined for beneficial reuse or recycling in a continuous process by the generating industry itself,” such as the recycled materials there. Id. at 1186 (emphasis omitted); accord Ass’n of Battery Recyclers, Inc. v. EPA 208 F.3d 1047, 1056 (D.C.Cir.2000) (“[A]t least some of the secondary material EPA seeks to regulate as solid waste is destined for reuse as part of a continuous industrial process and thus is not abandoned or thrown away. Once again, ‘by regulating in-process secondary materials, EPA has acted in contravention of Congress’ intent’ because it has based its regulation on an improper interpretation of ‘discarded’ and an incorrect reading of our AMC I decision.” (quoting AMC I, 824 F.2d at 1193)). On the flip side, in Safe Food & Fertilizer v. EPA 350 F.3d 1263 (D.C.Cir.2003), we upheld as permissible under Chevron step 2 EPA’s interpretation of the “solid waste” definition to exclude as not “discarded” industrial process byproducts recycled to produce zinc fertilizers as well as the fertilizers themselves. Id. at 1269-71; see also Am. Mining Cong. v. EPA 907 F.2d 1179, 1186 (D.C.Cir.1990) (“Nothing in AMC [I] prevents the agency from treating" }, { "docid": "13731473", "title": "", "text": "For this reason and those to follow, we find the lead plates and groups that ILCO reclaims from spent batteries fall squarely within the law and regulations governing the storage, disposal and treatment of hazardous waste. The RCRA, as amended, 42 U.S.C. §§ 6901-92k (1988), is a comprehensive environmental statute, which grants EPA authority to regulate solid and hazardous wastes from “cradle-to-grave.” American Petroleum Institute v. EPA 906 F.2d 729, 732 (D.C.Cir.1990). “Congress’ ‘overriding concern’ in enacting RCRA was to establish the framework for a national system to insure the safe management of hazardous waste.” American Mining Congress v. EPA 824 F.2d 1177, 1179 (D.C.Cir.1987) (AMC I). RCRA directs EPA to promulgate regulations establishing a comprehensive management system for hazardous wastes. 42 U.S.C. §§ 6921-39b (1988). Before a material can be designated- and regulated as a “hazardous waste,” it must first be determined to be a “solid waste.” See 42 U.S.C. § 6903(5) (1988). Solid waste includes: any garbage, refuse, sludge from a waste treatment plant, water supply treatment plaiit, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, eommer- cial, mining, and agricultural operations, and from community activities.... 42 U.S.C. § 6903(27) (1988) (emphasis added). 42 U.S.C. § 6921 directs the Administrator of the EPA to identify those Solid-wastes which are “hazardous” and whose management should therefore be governed by RCRA. In particular, § 6921 requires the Administrator both to “promulgate criteria for identifying the characteristics of hazardous waste” and, using these criteria, to list “specific hazardous wastes.” See American Petroleum, 906 F.2d at 733. Pursuant to its authority, EPA has promulgated regulations which specifically address discarded lead-acid batteries. Without clarifying the meaning of “discarded,” Congress defined solid waste as “any discarded material” not otherwise exempted from regulation. EPA has filled the statutory gap by defining “discarded material” as any material which is abandoned, recycled, or inherently wastelike. 40 C.F.R. § 261.2(a)(2) (1992). “Recycled material” refers to, inter alia, spent material which has been reclaimed. 40 C.F.R. § 261.2(c)(3) (1992). A material is “ ‘reclaimed’ if it is" }, { "docid": "15168419", "title": "", "text": "See St. Francis Hosp., 814 F.2d at 707-08; Prill v. NLRB, 755 F.2d 941, 942 (D.C.Cir.), cert. denied, 474 U.S. 948, 106 S.Ct. 313, 88 L.Ed.2d 294 (1985). “[E]mploying traditional tools of statutory construction,” Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. at 2781 n. 9, we find that the answer t,o the question regarding EPA’s authority to prescribe treatment standards for K061 slag is at best ambiguous. EPA contends that K061 “discarded” by producers of steel is no longer “discarded” under section 6903(5) when it arrives at a facility for metal reclamations. An at least equally plausible reading of the statute, however, is that K061 remains “discarded” throughout the “waste treatment” process dictated by the agency. Indeed, EPA does not seriously contend that this reading of the statute is foreclosed by the text of the statute, nor does it refer us to anything in the legislative history that prohibits such a construction. Rather, EPA bases its reading of the RCRA almost entirely on our decision in American Mining Congress v. EPA, 824 F.2d 1177 (D.C.Cir.1987) (“AMC”). The issue in AMC was whether the EPA could, under the RCRA, treat as “solid wastes” “materials that are recycled and reused in an ongoing manufacturing or industrial process.” Id. at 1186. We held that it could not because [t]hese materials have not yet become part of the waste disposal problem; rather, they are destined for beneficial reuse or recycling in a continuous process by the generating industry itself. Id. Materials subject to such a process were not “discarded” because they were never “disposed of, abandoned, or thrown away.” Id. at 1193. AMC is by no means dispositive of EPA’s authority to regulate K061 slag. Unlike the materials in question in AMC, K061 is indisputably “discarded” before being subject to metals reclamation. Consequently, it has “become part of the waste disposal problem”; that is why EPA has the power to require that K061 be subject to mandatory metals reclamation. See 53 Fed.Reg. 11,752-53 (recognizing this point). Nor does anything in AMC require EPA to cease treating K061 as “solid waste” once it" }, { "docid": "22187043", "title": "", "text": "decide whether Safe Air presented a genuine issue of material fact supporting its contention that the Kentucky bluegrass residue burnt by the Growers is “solid waste” under RCRA. Our sister circuits have considered the scope of RCRA’s definition of “solid waste,” and their determinations are helpful to our analysis. The D.C. Circuit assessed the scope of RCRA’s definition of “solid waste” in American Mining Congress v. U.S. EPA, 824 F.2d 1177 (D.C.Cir.1987) (AMC I). In AMC I, an industry group of mining and oil refining companies challenged an Environmental Protection Agency (“EPA”) rule amendment giving the EPA authority to regulate reused materials in the petroleum and mining industries. Noting that “EPA’s jurisdiction is limited to those materials that constitute ‘solid waste,’ ” AMC I, 824 F.2d at 1179, the D.C. Circuit held that “our analysis of [RCRA] reveals clear Congressional intent to extend EPA’s authority only to materials that are truly discarded, disposed of, thrown away, or abandoned.” Id. at 1190. It reasoned, persuasively to us, that “[e]n-compassing materials retained for immediate reuse within the scope of ‘discarded material’ strains ... the everyday usage of that term.” Id. at 1184. Significant for our purposes, AMC I determined that materials have not contributed to a waste disposal problem where “they are destined for beneficial reuse or recycling in a continuous process by the generating industry itself.” Id. at 1186. The D.C. Circuit held that EPA contravened Congress’s intent by attempting to regulate “in-process secondary materials.” Id. at 1193. The D.C. Circuit reached a similar conclusion in Association of Battery Recyclers v. U.S. EPA, 208 F.3d 1047 (D.C.Cir.2000). The issue in Battery Recyclers was whether materials generated and reclaimed within the mineral processing industry could be deemed “solid waste” under RCRA, such that it could be regulated by the EPA. The court held that “at least some of the secondary material EPA seeks to regulate as solid waste is destined for reuse as part of a continuous industrial process and thus is not abandoned or thrown away.” Id. at 1056. The Eleventh Circuit addressed a variation of this issue in United States" }, { "docid": "22187044", "title": "", "text": "scope of ‘discarded material’ strains ... the everyday usage of that term.” Id. at 1184. Significant for our purposes, AMC I determined that materials have not contributed to a waste disposal problem where “they are destined for beneficial reuse or recycling in a continuous process by the generating industry itself.” Id. at 1186. The D.C. Circuit held that EPA contravened Congress’s intent by attempting to regulate “in-process secondary materials.” Id. at 1193. The D.C. Circuit reached a similar conclusion in Association of Battery Recyclers v. U.S. EPA, 208 F.3d 1047 (D.C.Cir.2000). The issue in Battery Recyclers was whether materials generated and reclaimed within the mineral processing industry could be deemed “solid waste” under RCRA, such that it could be regulated by the EPA. The court held that “at least some of the secondary material EPA seeks to regulate as solid waste is destined for reuse as part of a continuous industrial process and thus is not abandoned or thrown away.” Id. at 1056. The Eleventh Circuit addressed a variation of this issue in United States v. ILCO, 996 F.2d 1126 (11th Cir.1993). In ILCO, a lead smelting company (“Interstate Lead”) producing ingots from lead plates of recycled automobile batteries challenged EPA’s regulation of the plates. Interstate Lead argued that, because it had never disposed of the lead plates, EPA could not regulate the lead plates as “discarded material” under 42 U.S.C. § 6903(27). The Eleventh Circuit disagreed, reasoning: The lead plates and groups are, no doubt, valuable feedstock for a smelting process. Nevertheless, EPA, with congressional authority, promulgated regulations that classify these materials as ‘discarded solid waste.’ Somebody has discarded the battery in which these components are found. This fact does not change just because a reclaimer has purchased or finds value in the components. Id. at 1131. Considering these extra-circuit cases to be persuasive in identifying relevant considerations bearing on whether grass residue is “solid waste” under RCRA, we will also evaluate: (1) whether the material is “destined for beneficial reuse or recycling in a continuous process by the generating industry itself,” AMC I, 824 F.2d at 1186; (2)" }, { "docid": "22187045", "title": "", "text": "v. ILCO, 996 F.2d 1126 (11th Cir.1993). In ILCO, a lead smelting company (“Interstate Lead”) producing ingots from lead plates of recycled automobile batteries challenged EPA’s regulation of the plates. Interstate Lead argued that, because it had never disposed of the lead plates, EPA could not regulate the lead plates as “discarded material” under 42 U.S.C. § 6903(27). The Eleventh Circuit disagreed, reasoning: The lead plates and groups are, no doubt, valuable feedstock for a smelting process. Nevertheless, EPA, with congressional authority, promulgated regulations that classify these materials as ‘discarded solid waste.’ Somebody has discarded the battery in which these components are found. This fact does not change just because a reclaimer has purchased or finds value in the components. Id. at 1131. Considering these extra-circuit cases to be persuasive in identifying relevant considerations bearing on whether grass residue is “solid waste” under RCRA, we will also evaluate: (1) whether the material is “destined for beneficial reuse or recycling in a continuous process by the generating industry itself,” AMC I, 824 F.2d at 1186; (2) whether the materials are being actively reused, or whether they merely have the potential of being reused, AMC II, 907 F.2d at 1186; (3) whether the materials are being reused by its original owner, as opposed to use by a salvager or reclaimer, ILCO, 996 F.2d at 1131. We turn to the evidence submitted by the parties to the district court. The Growers presented evidence that they do not discard the grass residue, but rather reuse grass residue in a continuous process of growing Kentucky bluegrass. This reuse generates two primary benefits to the Growers: returning nutrients to bluegrass fields and facilitating the open burning process. The Growers presented evidence at the preliminary injunction hearing showing that grass residue contains nutrients that are beneficial to bluegrass fields when returned to soil. Dr. Glen Murray, the Growers’ expert on growing Kentucky blue-grass in the northern Idaho area, testified that grass residue contributes recycled nutrients and can act as a fertilizer to bluegrass fields. Karl Felgenhauer, a Washington bluegrass fanner, also testified that grass residue contains such" }, { "docid": "13731474", "title": "", "text": "and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, eommer- cial, mining, and agricultural operations, and from community activities.... 42 U.S.C. § 6903(27) (1988) (emphasis added). 42 U.S.C. § 6921 directs the Administrator of the EPA to identify those Solid-wastes which are “hazardous” and whose management should therefore be governed by RCRA. In particular, § 6921 requires the Administrator both to “promulgate criteria for identifying the characteristics of hazardous waste” and, using these criteria, to list “specific hazardous wastes.” See American Petroleum, 906 F.2d at 733. Pursuant to its authority, EPA has promulgated regulations which specifically address discarded lead-acid batteries. Without clarifying the meaning of “discarded,” Congress defined solid waste as “any discarded material” not otherwise exempted from regulation. EPA has filled the statutory gap by defining “discarded material” as any material which is abandoned, recycled, or inherently wastelike. 40 C.F.R. § 261.2(a)(2) (1992). “Recycled material” refers to, inter alia, spent material which has been reclaimed. 40 C.F.R. § 261.2(c)(3) (1992). A material is “ ‘reclaimed’ if it is processed to recover a usable product, or if it is regenerated. Examples are recovery of lead values from spent batteries-” 40 C.F.R. § 261.1(c)(4) (1992). “Reclaimed material” clearly includes lead values derived from the plates and groups at issue here. Furthermore, these battery components fall within the § 261.1(c)(4) definition of recycled material because ILCO runs the plates and groups through a smelting process to recover a usable product, lead, which is then east into ingots and sold. Thus, having met the definition of “recycled,” the lead components are discarded' material as defined in 40 C.F.R. § 261.2(a)(2). The regulations also specify those recycled materials which are solid wastes. They include “spent materials” that are recycled by “reclamation,” or are “accumulated, stored, or treated before recycling” by reclamation. 40 C.F.R. § 261.2(c) (1992). A “spent material” is “any material that has been used and as a result of contamination- can no longer serve the purpose for which it was produced without processing.” 40 C.F.R. § 261.1(c)(1) (1992). Thus, the applicable regulations are unambiguous with respect" }, { "docid": "22187073", "title": "", "text": "cases interpret the meaning of “solid waste” in considering the validity of hazardous waste regulations promulgated by the Environmental Protection Agency (“EPA”). See AMC I, 824 F.2d at 1178 (considering whether the EPA exceeded its regulatory authority by including “in process secondary materials” in its definition of solid waste); American Mining Cong. v. U.S. EPA, 907 F.2d 1179, 1181-82 (D.C.Cir.1990) (AMC II) (considering whether the EPA exceeded its regulatory authority in treating six wastes generated from metal smelting operations as “hazardous” waste); United States v. ILCO, Inc., 996 F.2d 1126, 1130 (11th Cir.1993) (considering whether “lead parts, which have been reclaimed from spent car and truck batteries for recycling purposes, are exempt from[the EPA’s] regulation under RCRA”). Although RCRA defines “solid waste” to cover all types of “discarded materials,” see 42 U.S.C. § 6903(27), the EPA’s RCRA regulations at issue in AMC I, AMC II and ILCO have a special definition of “solid waste,” see 40 C.F.R. § 261.2(a)(1), which “applies only to wastes that also are hazardous for purposes of the regulations implementing Subtitle C of RCRA.” 40 C.F.R. § 261.1(b)(1). Thus, the regulatory definition considered in AMC I, AMC II and ILCO is significantly narrower than the statutory definition at issue here. Accordingly, I do not find these cases persuasive in our determination of whether the post-harvest crop residue has been “discarded.” C. Even if I were to agree with the majority’s conclusion that the extra-circuit cases constitute persuasive authority, Maj. Op. at 1043, I would nonetheless conclude that there is a genuine factual dispute as to whether the post-harvest crop residue has been discarded. I would therefore reverse the summary judgment in favor of the Growers. Relying on the analysis in AMC I, AMC II and ILCO, the majority reasons that as long as the residue “provides benefits for the Growers,” Maj. Op. at 1044, it has not been “discarded” under RCRA. This unnecessarily narrows the definition of “discarded material.” The cases do not support the majority’s proposition that the- mere recognition of some beneficial use negates the fact that materials have been “discarded” under RCRA. The" }, { "docid": "17117304", "title": "", "text": "Dep’t of the Interior, 880 F.2d at 441. As Subtitle C, read as a whole, provides broad authority to the EPA to fashion rules to govern the management of hazardous wastes, it would seem entirely reasonable for the EPA to conclude that it has the authority to regulate the extraction of resources from the wastes committed to its care. Nevertheless, the AMC relies specifically on our decision in AMC I to argue that the EPA does not have authority to regulate resource recovery from hazardous wastes because the recovery occurs within the industrial process. In AMC I, however, we held that secondary materials that are “destined for immediate reuse in another phase of the industry’s.ongoing process ... have not yet become part of the waste disposal problem” and therefore are not solid wastes. AMC I, 824 F.2d at 1185-86; compare AMC II, 907 F.2d at 1185-87. AMC I does not affect in any way the EPA’s ability to regulate hazardous materials after they have been discarded. See 42 U.S.C. § 6903(27) (defining “solid waste” as “discarded material ... resulting from industrial [and other] activities”). Indeed, our subsequent holding in API strongly suggests that hazardous wastes sent to reclamation facilities fall within the scope of Subtitle C regulation. In API, we rejected the EPA’s view that the definition of solid waste, and our decision in AMC I, barred the regulation of K061 slag sent to a reclamation facility. The EPA believed that because the slag was sent to a reclamation facility, it could not be considered “discarded” and thus was not a solid waste. We rejected that reading of AMC I as too broad and remanded for reconsideration. We noted that “it appears unlikely that EPA can simply readopt the conclusion that its authority to regulate K061 ends at the door of the reclamation facility. To reach such a conclusion, EPA would have to reconcile this position with the RCRA’s acknowledged objective to establish[ ] a cradle-to-grave regulatory structure for the safe handling of hazardous wastes.” API, 906 F.2d at 741 (quoting United Technologies Corp. v. EPA, 821 F.2d 714, 716" }, { "docid": "15166926", "title": "", "text": "“discarded” within the meaning of RCRA. Id. at 1193. Petitioners read AMC too broadly. AMC’s holding concerned only materials that are “destined for immediate reuse in another phase of the industry’s ongoing production process,” id. at 1185 (emphasis added), and that “have not yet become part of the waste disposal problem,” id. at 1186. Nothing in AMC prevents the agency from treating as “discarded” the wastes at issue in this case, which are managed in land disposal units that are part of waste-water treatment systems, which have therefore become “part of the waste disposal problem,” and which are not part of ongoing industrial processes. Indeed, API explicitly rejected the very claim that petitioners assert in this case, see Final Brief of Consolidated Petitioners at 12-13, namely, that under RCRA, potential reuse of a material prevents the agency from classifying it as “discarded.” See API, at 740-741. Because Congress has not directly spoken to the precise question at issue, we must consider whether the agency’s interpretation of the term “discarded” was “per missible,” see Chevron, 467 U.S. at 843, 104 S.Ct. at 2781, that is, “reasonable and consistent with the statutory purpose,” Ohio v. Department of the Interior, 880 F.2d at 441. In this case, the agency determined that material placed in wastewater treatment surface impoundments where it is “capable of posing a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported or disposed of, or otherwise managed,” 40 C.F.R. § 261.11(a)(3), by leaching into the ground, is “discarded material,” and hence a “solid waste.” As the agency notes, because of their propensity to leak hazardous materials into the environment, surface impoundments are a central focus of RCRA’s regime. See, e.g., 42 U.S.C. §§ 6901(b)(7), 6924(k) , (o), 6925(j). In addition, Congress made clear in the legislative history of RCRA its concern to regulate hazardous materials in surface impoundments. See, e.g., H.R.Rep. No. 1491, 94th Cong., 2d Sess. 2-3 (1976); S.Rep. No. 284, 98th Cong., 1st Sess. 13-16 (1983). In light of this evidence, we conclude that the agency’s interpretation of “discarded” is both" }, { "docid": "15166925", "title": "", "text": "delegated lawmaking powers. See API, at 740-741. Petitioners direct us to nothing whatsoever in the language, overall structure, or legislative history of the statute, nor do we know of anything therein, that shows the term “discarded” to be any less ambiguous regarding sludges stored in surface impoundments than it was regarding the materials at issue in API. To support their claim that RCRA forecloses EPA regulation of these sludges, petitioners invoke this court’s decision in AMC, 824 F.2d 1177. At issue in AMC was whether EPA could, under RCRA, treat as “solid wastes” “materials that are recycled and reused in an ongoing manufacturing or industrial process.” Id. at 1186 (emphasis in original). We held that the agency could not treat such materials as solid wastes, because they “have not yet become part of the waste disposal problem; rather, they are destined for beneficial reuse or recycling in a continuous process by the generating industry itself.” Id. (emphasis in original). Because such materials were never “disposed of, abandoned, or thrown away,” we concluded, they were not “discarded” within the meaning of RCRA. Id. at 1193. Petitioners read AMC too broadly. AMC’s holding concerned only materials that are “destined for immediate reuse in another phase of the industry’s ongoing production process,” id. at 1185 (emphasis added), and that “have not yet become part of the waste disposal problem,” id. at 1186. Nothing in AMC prevents the agency from treating as “discarded” the wastes at issue in this case, which are managed in land disposal units that are part of waste-water treatment systems, which have therefore become “part of the waste disposal problem,” and which are not part of ongoing industrial processes. Indeed, API explicitly rejected the very claim that petitioners assert in this case, see Final Brief of Consolidated Petitioners at 12-13, namely, that under RCRA, potential reuse of a material prevents the agency from classifying it as “discarded.” See API, at 740-741. Because Congress has not directly spoken to the precise question at issue, we must consider whether the agency’s interpretation of the term “discarded” was “per missible,” see Chevron, 467" }, { "docid": "22187058", "title": "", "text": "2400 tons of lead shot and eleven million pounds of clay target fragments located on land and waters surrounding a shooting club. The materials had accumulated after seventy years of operation of the shooting club. The court held, \"[w]ithout deciding how long materials must accumulate before they become discarded ... we agree that the lead shot and clay targets in Long Island Sound have accumulated long enough to be considered solid waste.” Id. at 1316 (emphasis added). Thus, the length of time the materials accumulated was important to determining whether the materials were solid waste. . The D.C. Circuit revisited this issue in American Mining Cong. v. U.S. EPA, 907 F.2d 1179 (D.C.Cir.1990) (AMC II), when it held that sludge from wastewater that may at some time in the future be reclaimed constitutes \"discarded” material under RCRA. Id. at 1186-87. The court determined that \"[njoth-ing in [AMC 7] prevents [EPA] from treating as 'discarded' the wastes at issue in this case, which are managed in land disposal units that are part of wastewater treatment systems, which have therefore become 'part of the waste disposal problem,' and which are not part of ongoing industrial processes.” Id. at 1186. .EPA regulated these materials under RCRA's \"hazardous waste” subsection; however, as we have already discussed, hazardous waste under RCRA is a subset of \"solid waste,” and the definition of \"solid waste” at issue in ILCO was the same as that before us. . We recognize that the issue of monetary value does not affect the analysis of whether materials are \"solid waste” under RCRA. As the Eleventh Circuit held in ILCO, the fact that discarded materials are \"solid waste” under RCRA does not change \"just because a reclaimer has purchased or finds value in the components.” Interstate Lead, 996 F.2d at 1131. However, in this case the Growers do not base their argument on the assertion that grass residue has monetary value to someone; rather, the Growers argue that grass residue is not solid waste because they immediately reuse it to further successful bluegrass harvests. . The Idaho legislature has made a similar" }, { "docid": "22187062", "title": "", "text": "this definition. As we explain in our analysis, we conclude that grass residue is not \"solid waste” under RCRA. Thus, while both this opinion and the dissent agree that we start with the statute's language, in our view the dissent goes astray with an incomplete analysis. Second, the dissent contends that the out-of-circuit cases that we cite are inapplicable because they involve EPA regulations that have a narrower definition of \"solid waste.” This argument is without merit. Because these cases involve challenges to EPA's regulation of particular items, these cases necessarily address whether those items were within RCRA’s statutory definition of \"solid waste” as \"discarded material,” the same definition at issue here. ILCO, 996 F.2d at 1132 (rejecting challenge to EPA regulation because batteries were “discarded” under RCRA's general definition of \"solid waste”); AMC I, 824 F.2d at 1185 (\"The question we face ... is whether ... Congress was using the term 'discarded' in its ordinary sense....”); AMC II, 907 F.2d at 1186 (\"Nothing in AMC prevents [EPA] from treating as 'discarded' the wastes at issue in this case....”). These cases analyze the term \"discarded,” are persuasively contrary to the dissent's analysis, and are relevant to the issue before us which has never been decided by our circuit. Third, the dissent argues that our holding permits any disposal process as long as the waste residue is eventually returned to soil. This is an incorrect overstatement. We only hold that, in these circumstances of Kentucky bluegrass farming, grass residue customarily used in the farming cycle is not “solid waste” under RCRA. Finally, the dissent urges that a genuine issue of material fact exists as to the value of grass residue to the Growers. But as we explain in our textual discussion, the Growers introduced uncontested testimony, during an extensive evidentiary hearing in the district court, that grass residue has benefits to the Growers. The dissent does not point to any testimony contradicting this point that the district court found uncontested. It is not enough for Safe Air merely to argue that the uncontested benefits are ancillary. . Having determined that grass" }, { "docid": "13731478", "title": "", "text": "production process to another” are not “discarded” within the meaning of RCRA). Therefore, we find these batteries and their contents are “discarded” within the everyday sense of the word. Their secondary character as recyclable material is irrelevant to that determination. See AMC I, 824 F.2d at 1192-93 and AMC II, 907 F.2d at 1186-87. We have found nothing in the language of the statute, and ILCO has brought forth nothing from the legislative history to show that EPA’s policy choice is not one Congress would have sanctioned. See AMC II, 907 F.2d at 1186. On the contrary, application of these regulations to spent batteries and parts generated by consumers comports with Congress’ intent in RCRA to address the problems posed by hazardous waste. The House Committee explained: It is not only the waste by-products of the nation’s manufacturing processes with which the committee is concerned: but also the products themselves once they have served them intended purposes and are no longer wanted by the consumer. For these reasons the-term, discarded materials is used to identify collectively those substances often referred to as industrial, municipal or post-consumer waste; refuse, trash, garbage and sludge. H.R.Rep. No. 1491, 94th Cong., 2d Sess. 2 (1976), reprinted in 1976 U.S.C.C.A.N. 6238, 6240 (emphasis added). We, therefore, will not disturb an agency’s policy choice that is reasonably consistent with the purpose of the statute. Chevron, 467 U.S. at 845, 104 S.Ct. at 2783. CONCLUSION For the foregoing reasons, we REVERSE the district court’s determination that the lead plates and groups are “raw materials” and hold they are “hazardous waste” subject to regulation under RCRA, but AFFIRM its decision in every other respect. The case is REMANDED for proceedings, consistent with this opinion. . This concise description is quoted, in large part, from the district court’s unreported opinion. See United States v. ILCO, 32 Env't Rep. Cas. (BNA) 1977, 1990 WL 300298 (N.D.Ala. 1990). . The original complaint was filed by EPA in March 1985. ADEM subsequently intervened, asserting similar claims under comparable state law. EPA and ADEM assert the same issue on appeal. In the interest" }, { "docid": "22187075", "title": "", "text": "cases cited by the majority distinguish between those materials extracted and immediately reused in an ongoing process and those materials discarded and only later put to beneficial use. AMC I merely held that materials extracted from primary metals that are recaptured and recycled as part of an ongoing industrial process are not “solid waste” under the EPA’s regulatory definition of that term. That same court later clarified that AMC I’s “holding concerned only materials that are ‘destined for immediate reuse in another phase of the industry’s ongoing production process....’” AMC II, 907 F.2d at 1186 (quoting AMC I, 824 F.2d at 1185) (emphasis in original). The D.C. Circuit also rejected the claim that “potential reuse of a material prevents the [EPA] from classifying it as ‘discarded.’ ” Id.; see also ILCO, 996 F.2d at 1132 (noting that “[p]reviously discarded solid waste, although it may at some point be recycled, nonetheless remains solid waste”); Am. Petroleum Inst. v. U.S. EPA, 906 F.2d 729, 741 (D.C.Cir.1990) (holding that slag residue resulting from the production of steel was “discarded” even though zinc would later be recovered from the slag at a reclamation facility.). Thus, even following the majority’s analysis and drawing on the principles from the above cases, it still must be shown that the residue is “destined for immediate reuse in another phase of the industry’s ongoing production process.” AMC II, 907 F.2d at 1186 (emphasis in original). Relevant considerations may include such questions as the intent of the Growers in using the materials and the purpose of removing the residue, see No Spray Coalition, Inc. v. City of New York, 252 F.3d 148 (2d Cir.2001) (insecticides are not “discarded” within the meaning of RCRA when they are sprayed into the air with the design of effecting their intended purpose of killing mosquitoes and their larvae); Water Keeper Alliance v. United States Dep’t of Defense, 152 F.Supp.2d 163, 167-69 (D.P.R.) (holding that ordinances were not “discarded material” under RCRA as soon as they made contact with the land because, at that moment, at least, they were still serving their intended purpose), aff'd" } ]

[ { "docid": "442414", "title": "", "text": "for example, minority underrepresentation is grounds for an upward adjustment in forfeiture amount. Streamlining Broadcast EEO Rule and Policies, 11 F.C.C.R. 5154 (1996). Similarly, the EEO regulation applicable to television stations warns that the Commission will send a letter recommending “any necessary improvements” to licensees whose minority representation falls below the FCC’s processing guidelines. 47 C.F.R. § 73.2080(d) (1997). A radio licensee would have every reason to think this indicative of the Commission’s approach, especially since this rule appears as a subsection in the general EEO regulation. In sum, under both its current and past practice, the Commission has used enforcement to harden the suggestion already present in its EEO program regulations. In his Adarand dissent, Justice Stevens described the program in that ease as containing no quota or rigid preference. Ada-rand, 515 U.S. at 262-63, 115 S.Ct. at 2129- 30. There, the agency encouraged minority hiring by offering a bonus to those contractors who employed minority subcontractors. Id. at 209,115 S.Ct. at 2103-04. Although it was urged that such “goals” should be treated differently than obligatory set-asides, the majority did not even pause to consider this argument. Similarly, we do not think it matters whether a government hiring program imposes hard quotas, soft quotas, or goals. Any one of these techniques induces an employer to hire with an eye toward meeting the numerical target. As such, they can and surely will result in individuals being granted a preference because of their race. As the Court said in Adarand, “All governmental action based on race ... should be subjected to detailed judicial inquiry.” Id. at 226, 115 S.Ct. at 2112-13 (emphasis added). Strict scrutiny applies and we turn to whether, in accordance with recognized doctrine, the regulations are narrowly tailored to serve a compelling state interest. ****** The Commission has unequivocally stated that its EEO regulations rest solely on its desire to foster “diverse” programming content. The Justice Department, on the other hand, argues that the FCC’s policy is supported by twin governmental goals of seeking diversity of programming and preventing employment discrimination. It may be that the Commission has" } ]

[ { "docid": "22149829", "title": "", "text": "explain why the policy being challenged is unlawful regardless. See Eisenberg, 197 F.3d at 130; Tuttle v. Arlington County Sch. Bd., 195 F.3d 698, 705 (4th Cir.1999) (“Since we conclude ... that the [race-based admissions policy] was not narrowly tailored, we leave the question of whether diversity is a compelling interest unanswered.”); Wessmann, 160 F.3d at 794 (“[we] assume arguendo — but we do not decide — that Bakke remains good law and that some iterations of ‘diversity’ might be sufficiently compelling, in specific circumstances, to justify race-conscious actions.”). We shall do the same, and assume for purposes of this opinion only that UGA’s asserted interest in student body diversity is a compelling interest. B. The Supreme Court has explained that, although in certain circumstances drawing racial distinctions is permissible where a governmental body is pursuing a compelling state interest, a state “is constrained in how it may pursue that end: ‘[T]he means chosen to accomplish the State’s asserted purpose must be specifically and narrowly framed to accomplish that purpose.’” Shaw II, 517 U.S. at 908, 116 S.Ct. at 1902. The important purpose of the narrow tailoring requirement is to ensure that “the chosen means ‘fit’ in th[e] compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype.” Croson, 488 U.S. at 493, 109 S.Ct. at 721. By definition, this inquiry must be intrusive, and focused very closely and in a very precise way on the specific terms of the regulation or policy under review, because only with that kind of searching examination can a court ensure that the defendant’s use of race is truly as narrow as the Constitution requires. See In re Birmingham Reverse Discrimination Employment Litigation, 20 F.3d 1525, 1545 (11th Cir.1994) (“a race conscious government policy justified by a compelling purpose ... must also use race in as limited a manner as possible to accomplish that compelling purpose.”). As we have discussed, it is the burden of the party proposing a racial preference to show that its approach is narrowly tailored to achieving" }, { "docid": "13620681", "title": "", "text": "local affirmative action program. That opinion provides more guidance than the earlier cases, but the contours of its reasoning must still be fleshed out in future cases. I begin by briefly reviewing the four cases. Bakke struck down a university admissions policy that set aside a fixed percentage of each class,for minority candidates. In the majority, only Justice Powell’s opinion reached the constitutional issue, and in discussing the possible justifications for the admissions program, he firmly rejected the notion that a racial classification could be based on a mere desire to assure that the student body contained specified percentages of particular racial and ethnic groups. 438 U.S. at 307, 98 S.Ct. at 2757. He also rejected the use of a preference as a remedy for past discrimination, because the university had not made any findings of discrimination, and indeed was not competent to make such findings. Id. at 307-09, 98 S.Ct. at 2757-58. Justice Powell’s opinion, however, did recognize that an academic institution has a compelling interest in promoting a diverse educational environment. Id. at 311-14, 98 S.Ct. at 2759-60. Bringing together students from diverse ethnic and cultural backgrounds allows them “to learn from their differences and to stimulate one another to reexamine even their most deeply held assumptions about themselves and their world.” Id. at 313 n. 48, 98 S.Ct. at 2760 n. 48 (citation omitted). Racial diversity is a legitimate aspect of a diverse student body, but it is only one part of the “genuine diversity” that is a compelling state interest. Id. at 315, 98 S.Ct. at 2761. Thus, the university could have used race as one factor in a multi-factor admissions decision. But simply employing a racial set-aside was inconsistent with the attainment of “genuine diversity,” an interest that would necessarily require consideration of factors other than race. See id. at 315-18, 98 S.Ct. at 2761-62. Fullilove is the only case in which the Court has sustained the constitutionality of a governmentally-imposed minority preference not occasioned by a court’s remedial action. The Court considered a facial challenge to the constitutionality of a set-aside provision in an" }, { "docid": "22149828", "title": "", "text": "the reasons for any such classification be clearly identified and unquestionably legitimate.’ ”) (citation omitted). It is possible that the important purpose of public education and the expansive freedoms of speech and thought associated with university environment — recognized in other decisions by the Court— may on a powerful record justify treating student body diversity as a compelling interest. The weight of recent precedent is undeniably to the contrary, however. To reiterate, we do not decide today whether or when student body diversity may be a compelling interest for purposes of strict scrutiny review under the Equal Protection Clause of the Fourteenth Amendment. The Supreme Court has placed as much importance on the requirement that any race-conscious program be narrowly tailored as it has on the requirement that the asserted justification for race-conscious decision-making be sufficiently compelling. Here, UGA fails to meet its burden of showing that its 1999 freshman admissions policy is narrowly tailored. In similar situations, courts elsewhere have simply assumed that student body diversity is a compelling interest, and then proceeded to explain why the policy being challenged is unlawful regardless. See Eisenberg, 197 F.3d at 130; Tuttle v. Arlington County Sch. Bd., 195 F.3d 698, 705 (4th Cir.1999) (“Since we conclude ... that the [race-based admissions policy] was not narrowly tailored, we leave the question of whether diversity is a compelling interest unanswered.”); Wessmann, 160 F.3d at 794 (“[we] assume arguendo — but we do not decide — that Bakke remains good law and that some iterations of ‘diversity’ might be sufficiently compelling, in specific circumstances, to justify race-conscious actions.”). We shall do the same, and assume for purposes of this opinion only that UGA’s asserted interest in student body diversity is a compelling interest. B. The Supreme Court has explained that, although in certain circumstances drawing racial distinctions is permissible where a governmental body is pursuing a compelling state interest, a state “is constrained in how it may pursue that end: ‘[T]he means chosen to accomplish the State’s asserted purpose must be specifically and narrowly framed to accomplish that purpose.’” Shaw II, 517 U.S. at" }, { "docid": "5259260", "title": "", "text": "asserted interests are compelling, the program is not narrowly tailored”); Maryland Troopers Ass’n v. Evans, 993 F.2d 1072, 1075 (4th Cir.1993) (reviewing district court finding that “[statistical] evidence of racial discrimination offered by the [defendants] was sufficient to warrant a race-conscious remedy”); Hayes v. North State Law Enforcement Officers Association, 10 F.3d 207, 213 (4th Cir.1993)(declining to decide whether diversity remains a sufficiently “compelling” rationale). The Court believes that the diversity interest remains a compelling governmental interest in the context now being considered. In Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), a case where the High Court passed upon an affirmative action program at a state-sponsored medical school, Justice Powell wrote that “the attainment of a diverse student body ... [is] clearly a constitutionally permissible goal for an institution of higher education.” Id. at 311-312, 98 S.Ct. 2733. This was so for many reasons, including the fact that “[a] great deal of learning occurs informally ... through interactions among students of both sexes; of different races, religions and backgrounds ....’’Id. at 312, fn. 48, 98 S.Ct. 2733. The importance of a diverse learning environment is at least as important in the context of public grade-school education. “Public secondary schools are of singular importance in the preparation of individuals for participation as citizens, and in the preservation of the values on which our society rests.” Wessmann by Wessman v. Boston School Committee, 996 F.Supp. 120, 128 (D.Mass.1998) (quotation omitted). While Eisenberg points out that Justice Powell did not enjoy the support of any other Justice with respect to his view in Bakke that diversity is a sufficiently compelling interest, it should be noted that this view has not been ignored by the other members of the court. See Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 286, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986) (O’Connor, J., cone.) (“a state interest in the promotion of racial diversity has been found sufficiently ‘compelling,’ at least in the context of higher education, to support the use of racial considerations in furthering that" }, { "docid": "10561967", "title": "", "text": "admissions programs were narrowly tailored to achieving that interest, and that, based upon the record before the Court, such issues may be resolved by summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The Diversity Rationale Both parties assert that with respect to the University Defendants’ “diversity” rationale, the Supreme Court’s decision in Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), governs this dispute. In support of their motion for summary judgment, the University Defendants, supported by Defendant-Intervenors and a number of amici, contend that under Justice Powell’s decision in Bakke, the University has a compelling governmental interest in the educational benefits that flow from a racially and ethnically diverse student body. The University Defendants also contend that under Bakke, the LSA’s admissions policies were properly tailored to achieve the University’s stated interest in diversity. Plaintiffs, however, contend that Justice Powell’s decision in Bakke has never garnered a majority of support from the Justices and that subsequent Supreme Court cases have confirmed that “diversity” and “academic freedom” are not compelling governmental interests that can ever justify the use of race in the admissions process. In the alternative, Plaintiffs contend that even if this Court were to find “diversity” to be a sufficiently compelling interest, they are nonetheless entitled to summary judgment because the manner in which the LSA used race in admissions decisions for the years at issue in this case, 1995 through the present, is inconsistent with that specifically endorsed by Justice Powell in Bakke. 1. The “Bakke” Decision In Bakke, a rejected applicant challenged the University of California at Davis Medical School’s admissions program, which consisted of two systems: a regular admissions system for non-minority applicants, and a special admissions system strictly for minorities. Bakke, 438 U.S. at 273-75, 98 S.Ct. at 2739-40. In contrast to the regular admissions system, the special minority admissions system operated with a separate committee, a majority of whom were members of minority groups. Special applicants were rated by the special committee in a manner similar to the regular" }, { "docid": "13620714", "title": "", "text": "FCC, 867 F.2d 654 (D.C.Cir.1989). Similarly, in its brief to this court sitting en banc in the Steele case, the FCC stated that “[w]ith changes in the broadcast industry over the last decade, the basis for the [race and gender] preference scheme becomes even more remote and the justification even less persuasive.” If other media are substitutes for broadcasting for purposes of presenting diverse viewpoints on controversial issues of public importance, thereby rendering the fairness doctrine violative of the First Amendment in the view of the FCC, it seems implausible that the FCC at the same time can have a compelling interest in continuing to promote diverse programming through the distress sale policy. But, assuming that West Michigan survives both Croson and the renunciation of the fairness doctrine, and is binding precedent on this point — that the FCC has a compelling interest in seeking racial or ethnic programming diversity when distributing broadcasting licenses — I am still faced with the issue whether a preference for minority ownership (or management) is an appropriate (narrowly tailored) means with which to achieve such programming diversity. The minority distress sale policy does not award a preference for diverse programming. Instead, the policy seeks to promote diversity of programming indirectly by limiting minority distress sale opportunities to broadcasting entities “with a significant minority ownership interest.” 1978 Policy Statement, 68 F.C.C.2d at 983. As a means to promote diverse programming, the distress sale policy rests on the questionable premise that minority ownership will by itself lead to minority programming (or programming that might be thought to have a minority perspective). In its brief to us in the Steele case, however, the FCC conceded “no record has been established on which to base an assumption that a nexus exists between an owner’s race or gender and program diversity.” If one of the advantages of racial diversity is to dispel invidious racial generalizations, see Wygant, 476 U.S. at 316, 106 S.Ct. at 1869 (Stevens, J., dissenting), it seems passing strange that a policy purporting to promote diversity should itself rest on a racial generalization. Presumably, a wide" }, { "docid": "2484127", "title": "", "text": "each for identifiable category of applicants” would not heal the admissions plan’s constitutional infirmity). When we articulated this concern at oral argument, the School Committee’s able counsel responded that it is unnecessary for the Policy to consider other indicia of diversity because BLS historically has been diverse with respect to everything but race and ethnicity. For empirical confirmation of this assertion, the School Committee points to Bain’s handiwork. Having analyzed various admissions options, Bain suggested that all the options would result in substantial gender, neighborhood, and socioeconomic diversity, but that, unless race and ethnicity were explicitly factored into the admissions calculus, attainment of racial and ethnic diversity might be jeopardized. This attempted confirmation does not pass constitutional muster. If, as we are told, diversity has been attained in all areas other than race and ethnicity, then the School Committee’s argument implodes. Statistics compiled for the last ten years show that under a strict merit-selection approach, black and Hispanic students together would comprise between 15% and 20% of each entering class, and minorities, in toto, would comprise a substantially greater percentage. Even on the assumption that the need for racial and ethnic diversity alone might sometimes constitute a compelling interest sufficient to warrant some type of corrective governmental action, it is perfectly clear that the need would have to be acute — much more acute than the relatively modest deviations that attend the instant case. In short, the School Committee’s flexible raeial/ethnic guidelines appear to be less a means of attaining diversity in any constitutionally relevant sense and' more a means for racial balancing. The Policy’s rebanee on a scheme of proportional representation buttresses this appearance and indicates that the School Committee intended mainly to achieve a raeial/ethnic “mix” that it considered desirable. Indeed, Bain’s Option N50 was chosen and incorporated into the Pobcy because it held out the promise of increasing minority representation over the roughly 18% that Bain anticipated would result on a strict merit-selection basis. The testimony at trial amply confirms this suspicion. Superintendent Payzant testified that a “fair representation of a cross-section of students” of the Boston" }, { "docid": "13857014", "title": "", "text": "that diversity “might be sufficiently compelling, in specific circumstances, to justify race-conscious actions.” Id. at 796. 2. Wessman Suggests that the Outcome is Fact-Bound The plaintiffs’ argument hinges entirely on a question of law — that avoiding racial isolation and promoting diversity are never permissible under Wessmann — regardless of the evidence of the importance of the program and how narrowly tailored the program is in achieving its objectives. Wessmann, in fact, turned on the insufficiency of the evidence with respect to these considerations. Rather than pronouncing a categorical ban on racial classifications aimed at promoting diverse student populations, the Court focused only on the mechanics of the particular policy at hand, noting that “the devil is in the details.” Id. at 798. (“we must look beyond the School Committee’s recital of the theoretical benefits of diversity and inquire whether the concrete workings of the Policy merit constitutional sanction”). In effect, the policy at issue in Wess-mann only marginally bumped up the percentage of minority student attendance and, therefore, had, at best, a slight impact on the diversity of the school population. While the First Circuit found that this slight impact was clearly insufficient to demonstrate the necessity of the policy to achieve a compelling state interest, it did not state that the showing of necessity could never be made. To be sure, the strict scrutiny standard imposes a very substantial burden on the defendants. See Personnel Amd’r of Mass. v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979)(“racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only on extraordinary justification”) (citations omitted). This Court will have to carefully scrutinize the record, and as in Wessmann, will not “allow generalities emanating from the subjective judgments of local officials to dictate whether a particular percentage of a particular racial or ethnic group is sufficient or insufficient [to achieve the policy’s stated goals].” Wessmann, 160 F.3d at 800. But the height of the defendants’ hurdle alone cannot be a sufficient basis for concluding that the plaintiffs are likely to succeed on the merits. The" }, { "docid": "13857030", "title": "", "text": "institution of higher learning. Id. at 313-315, 98 S.Ct. 2733. That, to the plaintiffs, and to a degree, the Wessmann court, is impermissible racial stereotyping. The diversity interest defendants argue here makes no assumptions about any groups' \"unique contribution.” Rather, it reflects a concern that elementary school children simply get used to being in classrooms with people different from themselves. In fact, it assumes that the more diverse a classroom is, the more likely students will learn that all people are different, no matter what their color or ethnic background. It is not a form of stereotyping, but a method to prevent the formation of stereotypes. This distinction is also discussed in the recent Second Circuit decision. See Brewer, 212 F.3d 738 (publication page references not yet available). .The Court pointed to the slight decrease in the student minority population that would result if the admissions policy were abandoned for a strict merit-selection process. Idea 798 (\"[e]ven on the assumption that the need for racial and ethnic diversity alone might sometimes constitute a compelling interest sufficient to warrant some type of corrective governmental action, it is perfectly clear that the need would have to be acute— much more acute than the relatively modest deviations that attend the instant case.”; see also id. at 809 (Boudin, J. concurring))(\"The record shows that minorities will be included in BLS in substantial numbers without the plan [and that] if some specific higher level is needed to achieve diversity of views and backgrounds, this has not been demonstrated in the record”). . See also Wessmann, 160 F.3d at 808 (\"only solid evidence will justify allowing race-conscious action; and the unsystematic personal observations of government officials will not do, even if the conclusions they offer sound plausible and are cloaked in the trappings of social science”). . Professor Orfield’s conclusions stem not only from studying the concrete dynamics of the Lynn Plan, but also from studying Lynn’s demographic make-up. . \"The question of precisely what interests government may legitimately invoke to justify race-based classifications is largely unsettled ... [and] the case law offers relatively little guidance.”" }, { "docid": "5259259", "title": "", "text": "U.S. at 477, 109 S.Ct. 706 (“The plan declared that it was ‘remedial’ in nature, and enacted ‘for the purpose of promoting wider participation by minority business enterprises in the construction of public projects’ ”). Likewise, the decision of the Fourth Circuit in Podberesky v. Kirwan, 38 F.3d 147 (4th Cir.1994), which Eisenberg also cites for the proposition that a remedial purpose is the only legitimate purpose which may justify the District’s actions, never decided the question of whether diversity is a sufficiently compelling interest. See Podberesky v. Kirwan, 956 F.2d 52, 56, fn. 4 (4th Cir.1992) (opinion before remand) (“[t]he district court did not cite the need for diversity for this program, and it does not appear that UMCP established that the Banneker Program was established with this goal in mind”); see also, Alexander v. Estepp, 95 F.3d 312, 316 (4th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 1425, 137 L.Ed.2d 535 (1997) (striking down affirmative action program relying upon diversity as well as remedial interests, concluding that “even assuming, arguendo, that the asserted interests are compelling, the program is not narrowly tailored”); Maryland Troopers Ass’n v. Evans, 993 F.2d 1072, 1075 (4th Cir.1993) (reviewing district court finding that “[statistical] evidence of racial discrimination offered by the [defendants] was sufficient to warrant a race-conscious remedy”); Hayes v. North State Law Enforcement Officers Association, 10 F.3d 207, 213 (4th Cir.1993)(declining to decide whether diversity remains a sufficiently “compelling” rationale). The Court believes that the diversity interest remains a compelling governmental interest in the context now being considered. In Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), a case where the High Court passed upon an affirmative action program at a state-sponsored medical school, Justice Powell wrote that “the attainment of a diverse student body ... [is] clearly a constitutionally permissible goal for an institution of higher education.” Id. at 311-312, 98 S.Ct. 2733. This was so for many reasons, including the fact that “[a] great deal of learning occurs informally ... through interactions among students of both sexes; of" }, { "docid": "11233856", "title": "", "text": "assertions to the contrary, 20 percent minority enrollment is no universal “ceiling” over which additional diversity ceases to be a compelling state interest. After conducting a comprehensive study, UT concluded it had not achieved critical mass and was not adequately providing the benefits from diversity to its students. See 200k. Proposal. Thus, like the Michigan Law School, UT decided to consider race as one of several factors in its admissions process in order to increase diversity. Based on the clear holding of the Supreme Court in Grutter and the undisputed facts of this case, the Court finds UT “has a compelling interest in attaining a diverse student body” sufficient to justify its consideration of race as a part of its admissions process. Grutter, 539 U.S. at 328, 123 S.Ct. 2325. IY. Narrowly Tailored Having found UT has a compelling interest in attaining a diverse student body, the Court must next determine whether UT’s use of race in admissions is narrowly tailored to further that interest. Grutter, 539 U.S. at 326, 123 S.Ct. 2325. Grutter specifically addresses what it means for a race-conscious admissions program to be narrowly tailored: To be narrowly tailored, a race-conscious admissions program cannot use a quota system-it cannot “insulat[e] each category of applicants with certain desired qualifications from competition with all other applicants.” Bakke, 438 U.S., at 315, 98 S.Ct. 2733 (opinion of Powell, J.). Instead, a university may consider race or ethnicity only as a “ ‘plus’ in a particular applicant’s file,” without “insulating] the individual from comparison with all other candidates for the available seats.” Id., at 317, 98 S.Ct. 2733. 539 U.S. at 334, 123 S.Ct. 2325. Furthermore: Narrow tailoring does not require exhaustion of every conceivable race-neutral alternative. Nor does it require a university to choose between maintaining a reputation for excellence or fulfilling a commitment to provide educational opportunities to members of all racial groups ... Narrow tailoring does, however, require serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks. Id. at 339, 123 S.Ct. 2325. UT considers race in its admissions process as" }, { "docid": "23027708", "title": "", "text": "compelling interest in remedying the University’s past and current discrimination against minorities. The District Court began its analysis by reviewing this Court’s decision in Bakke. See 122 F. Supp. 2d 811, 817 (ED Mich. 2000). Although the court acknowledged that no decision from this Court since Bakke has explicitly accepted the diversity rationale discussed by Justice Powell, see 122 F. Supp. 2d, at 820-821, it also concluded that this Court had not, in the years since Bakke, ruled out such a justification for the use of race, 122 F. Supp. 2d, at 820-821. The District Court concluded that respondents and their amici curiae had presented “solid evidence” that a racially and ethnically diverse student body produces significant educational benefits such that achieving such a student body constitutes a compelling governmental interest. See id., at 822-824. The court next considered whether the LSA’s admissions guidelines were narrowly tailored to achieve that interest. See id., at 824. Again relying on Justice Powell’s opinion in Bakke, the District Court determined that the admissions program the LSA began using in 1999 is a narrowly tailored means of achieving the University’s interest in the educational benefits that flow from a racially and ethnically diverse student body. See 122 F. Supp. 2d, at 827. The court emphasized that the LSA’s current program does not utilize rigid quotas or seek to admit a predetermined number of minority students. See ibid. The award of 20 points for membership in an underrepresented minority group, in the District Court’s view, was not the functional equivalent of a quota because minority candidates were not insulated from review by virtue of those points. See id., at 828. Likewise, the court rejected the assertion that the LSA’s program operates like the two-track system Justice Powell found objectionable in Bakke on the grounds that LSA applicants are not competing for different groups of seats. See 122 F. Supp. 2d, at 828-829. The court also dismissed petitioners’ assertion that the LSA’s current system is nothing more than a means by which to achieve racial balancing. See id., at 831. The court explained that the LSA" }, { "docid": "13620713", "title": "", "text": "time being, therefore, our precedent compels the conclusion that there is a compelling government interest in increasing diversity of programming. Whatever the legal validity of the FCC policy at issue in West Michigan, that precedent cannot support the Commission’s desire to promote diversity through the distress sale policy, because the FCC itself has determined that there no longer is an inadequate diversity of viewpoints in television programming. The FCC recently determined that the fairness doctrine, aimed at promoting balanced broadcast presentations on matters of public interest, was violative of the First Amendment and inimical to the public interest. Obviously, the FCC cannot claim a compelling interest in fostering diversity of programming if such diversity already exists. Yet in disavowing the fairness doctrine, the FCC acknowledged the growth of media outlets that provide information to the citizenry, and abandoned the scarcity rationale as a justification for regulating the broadcast media more stringently than the printed press. Syracuse Peace Council v. Television Station WTVH, 2 F.C.C. Rcd. 5043, 5054-55 (1987), aff'd sub nom. Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C.Cir.1989). Similarly, in its brief to this court sitting en banc in the Steele case, the FCC stated that “[w]ith changes in the broadcast industry over the last decade, the basis for the [race and gender] preference scheme becomes even more remote and the justification even less persuasive.” If other media are substitutes for broadcasting for purposes of presenting diverse viewpoints on controversial issues of public importance, thereby rendering the fairness doctrine violative of the First Amendment in the view of the FCC, it seems implausible that the FCC at the same time can have a compelling interest in continuing to promote diverse programming through the distress sale policy. But, assuming that West Michigan survives both Croson and the renunciation of the fairness doctrine, and is binding precedent on this point — that the FCC has a compelling interest in seeking racial or ethnic programming diversity when distributing broadcasting licenses — I am still faced with the issue whether a preference for minority ownership (or management) is an appropriate (narrowly tailored)" }, { "docid": "13857013", "title": "", "text": "entrance to the Boston Latin School — which granted preferences based on race — did not survive strict scrutiny. Id. at 800. Relying on Wessmann, plaintiffs assert that the use of racial classifications can never be justified by an interest in promoting a diverse student population. According to plaintiffs, no other possible justification exists for the Lynn Plan. Therefore, plaintiffs conclude that the Lynn Plan simply cannot survive strict scrutiny. Plaintiffs overstate the holding in Wess-mann. 1. Wessman Assumed Diversity Could be a Compelling Interest in Some Circumstances In Wessmann, the First Circuit explicitly declined to hold that a state’s interest in diversity in the educational context could never justify the use of race based classifications: Again, let us be perfectly clear. We are aware that two of our sister courts of appeals have suggested that diversity may never constitute a compelling governmental interest sufficient to warrant race based classifications.... For purposes of resolving this appeal, however, we need not speak definitively to that vexing question. Id. (citations omitted). Indeed, the court assumed, without deciding, that diversity “might be sufficiently compelling, in specific circumstances, to justify race-conscious actions.” Id. at 796. 2. Wessman Suggests that the Outcome is Fact-Bound The plaintiffs’ argument hinges entirely on a question of law — that avoiding racial isolation and promoting diversity are never permissible under Wessmann — regardless of the evidence of the importance of the program and how narrowly tailored the program is in achieving its objectives. Wessmann, in fact, turned on the insufficiency of the evidence with respect to these considerations. Rather than pronouncing a categorical ban on racial classifications aimed at promoting diverse student populations, the Court focused only on the mechanics of the particular policy at hand, noting that “the devil is in the details.” Id. at 798. (“we must look beyond the School Committee’s recital of the theoretical benefits of diversity and inquire whether the concrete workings of the Policy merit constitutional sanction”). In effect, the policy at issue in Wess-mann only marginally bumped up the percentage of minority student attendance and, therefore, had, at best, a slight impact" }, { "docid": "2484128", "title": "", "text": "comprise a substantially greater percentage. Even on the assumption that the need for racial and ethnic diversity alone might sometimes constitute a compelling interest sufficient to warrant some type of corrective governmental action, it is perfectly clear that the need would have to be acute — much more acute than the relatively modest deviations that attend the instant case. In short, the School Committee’s flexible raeial/ethnic guidelines appear to be less a means of attaining diversity in any constitutionally relevant sense and' more a means for racial balancing. The Policy’s rebanee on a scheme of proportional representation buttresses this appearance and indicates that the School Committee intended mainly to achieve a raeial/ethnic “mix” that it considered desirable. Indeed, Bain’s Option N50 was chosen and incorporated into the Pobcy because it held out the promise of increasing minority representation over the roughly 18% that Bain anticipated would result on a strict merit-selection basis. The testimony at trial amply confirms this suspicion. Superintendent Payzant testified that a “fair representation of a cross-section of students” of the Boston public schools would constitute a proper “reference point” for defining a “diverse mix” of students. The “cross-section” to which he referred is comprised of the proportions of seventh- and ninth-grade black, Hispanic, white, and Asian students enrolled in Boston’s pubbe high schools. Another “reference point” mentioned by Payzant was the “proportional representation” embodied by the Pobcy, which, given his other testimony, is ultimately designed to move in the direction of the same racial/ethnic distribution. Other school offi cials, such as Dr. Elizabeth Reilinger and Dr. Edwin Melendez, testified to like effect, sometimes invoking the notion of “underrep-resentation.” We do not question the School Committee’s good intentions. The record depicts a body that is struggling valiantly to come to terms with intractable social and educational issues. Here, however, the potential for harmful consequences prevents us from succumbing to good intentions. The Policy is, at bottom, a mechanism for racial balancing— and placing our imprimatur on racial balancing risks setting a precedent that is both dangerous to our democratic ideals and almost always constitutionally forbidden. See Freeman" }, { "docid": "13620691", "title": "", "text": "his view, is a compelling basis for affirmative discrimination only in circumstances and settings, such as those found in academia, where “a countervailing constitutional interest, that of the First Amendment,” in the selection of students “is of paramount importance in the fulfillment of [the institution’s] mission.” Id. at 313, 98 S.Ct. at 2760. Seeking racial or ethnic diversity for its own sake in a governmental or government-regulated institution has been soundly rejected. It is synonymous with the illegitimate objective of racial balance or proportional representation and is thus equivalent to “discrimination for its own sake.” Id. at 307, 98 S.Ct. at 2757. Preferring minorities in order to create role-models has been similarly rejected because it too leads inexorably to explicit racial balancing. See Wygant, 476 U.S. at 274-76, 106 S.Ct. at 1847-48 Britton v. South Bend Community School Corp., 819 F.2d 766, 767-68 (7th Cir.) (en banc), cert. denied, — U.S. —, 108 S.Ct. 288, 98 L.Ed. 2d 248 (1987). The goal of racial diversity might be compelling then only when that greater diversity itself serves one of society’s fundamental goals. See Bakke, 438 U.S. at 311-15, 98 S.Ct. at 2759-61. Even if the government is seeking racial diversity for a legitimate educational purpose, a court must still ask if the form and manner of the racial classification used is appropriate to achieve that purpose — again, whether the race-conscious measure is narrowly tailored. Id. at 315, 98 S.Ct. at 2761. The constitutional test for “narrow tailoring” appears to be slightly different when the government’s justification for a racial preference is the promotion of diversity (so far recognized only in an academic setting) rather than the remedy of past discrimination. The Court has rejected the use of minority set-asides as a means of promoting diversity. See id. at 315-18, 98 S.Ct. at 2761-62. Because ethnic (or racial) origin is just one of many factors that combine to create “genuine diversity” in an educational environment, the state’s interest is better promoted when ancestry is one element of a multi-factor evaluation that takes into consideration a variety of characteristics and attributes. Id." }, { "docid": "13620692", "title": "", "text": "serves one of society’s fundamental goals. See Bakke, 438 U.S. at 311-15, 98 S.Ct. at 2759-61. Even if the government is seeking racial diversity for a legitimate educational purpose, a court must still ask if the form and manner of the racial classification used is appropriate to achieve that purpose — again, whether the race-conscious measure is narrowly tailored. Id. at 315, 98 S.Ct. at 2761. The constitutional test for “narrow tailoring” appears to be slightly different when the government’s justification for a racial preference is the promotion of diversity (so far recognized only in an academic setting) rather than the remedy of past discrimination. The Court has rejected the use of minority set-asides as a means of promoting diversity. See id. at 315-18, 98 S.Ct. at 2761-62. Because ethnic (or racial) origin is just one of many factors that combine to create “genuine diversity” in an educational environment, the state’s interest is better promoted when ancestry is one element of a multi-factor evaluation that takes into consideration a variety of characteristics and attributes. Id. According to the Court (Justice Powell), the crucial requirement for a program that uses a racial preference to enhance legitimate diversity is that each applicant must receive individualized consideration. Bakke, 438 U.S. at 318 & n. 52, 98 S.Ct. at 2762 n. 52. The FCC appears to justify its policy both as a means to foster diverse programming and as a remedy for past discrimination. Although the Commission’s brief emphasizes that the distress sale policy is “based principally” on its authority to promote diversity of programming, and the dissent suggests that the policy rests “exclusively on the diversity rationale,” dissent at 953, I feel obliged to address the remedial justification as well. In its Memorandum Opinion and Order that rejected Shurberg’s constitutional claims, the agency also relied on the remedial justification, arguing that preferential treatment of minorities was needed to address the “un-derrepresentation of minorities” in the broadcasting industries. Faith Center, Inc., 99 F.C.C.2d at 1171. It further cited congressional statements that minority un-derrepresentation was the result of past racial and ethnic discrimination, and discussed" }, { "docid": "19447298", "title": "", "text": "that the University believes its discrimination furthers two distinct interests. The first is an interest in attaining diversity for its own sake. The second is an interest in attaining educational benefits that allegedly flow from diversity. Attaining diversity for its own sake is a nonstarter. As even Grutter recognized, the pursuit of diversity as an end is nothing more than impermissible \"racial balancing.\" 539 U.S., at 329-330, 123 S.Ct. 2325 (\"The Law School's interest is not simply 'to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin.' That would amount to outright racial balancing, which is patently unconstitutional\" (quoting Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 307, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) ; citation omitted)); see also id ., at 307, 98 S.Ct. 2733 (\"Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids\"). Rather, diversity can only be the means by which the University obtains educational benefits; it cannot be an end pursued for its own sake. Therefore, the educational benefits allegedly produced by diversity must rise to the level of a compelling state interest in order for the program to survive strict scrutiny. Unfortunately for the University, the educational benefits flowing from student body diversity-assuming they exist-hardly qualify as a compelling state interest. Indeed, the argument that educational benefits justify racial discrimination was advanced in support of racial segregation in the 1950's, but emphatically rejected by this Court. And just as the alleged educational benefits of segregation were insufficient to justify racial discrimination then, see Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), the alleged educational benefits of diversity cannot justify racial discrimination today. 1 Our desegregation cases establish that the Constitution prohibits public schools from discriminating based on race, even if discrimination is necessary to the schools' survival. In Davis v. School Bd. of Prince Edward Cty., decided with Brown, supra, the school board argued that if the Court" }, { "docid": "13620690", "title": "", "text": "at 2793 (Powell, J., concurring). When a remedy is limited and properly tailored, some sharing of the burden by innocent third parties may be unavoidable and does not render a remedial program unconstitutional. See Fullilove, 448 U.S. at 515, 100 S.Ct. at 2793 (Powell, J., concurring); Franks v. Bowman Transp. Co., 424 U.S. 747, 774-75, 96 S.Ct. 1251, 1269, 47 L.Ed.2d 444 (1976). But the government’s compelling need to employ a race-conscious remedy must outweigh the unfairness to innocent nonminorities. See Fullilove, 448 U.S. at 515, 100 S.Ct. at 2793 (Powell, J., concurring). Aside from remedying past discrimination, the only other state interest heretofore identified in a Supreme Court opinion and upheld as sufficiently compelling to support race-conscious policies is the promotion of diversity in a school’s student body. Bakke, 438 U.S. at 311-12, 98 S.Ct. at 2759 (opinion of Powell, J.). In Bakke, Justice Powell emphasized the special role and characteristics of institutions of higher learning and the First Amendment protections afforded them. Id. at 312-13, 98 S.Ct. at 2759-60 Pursuit of diversity, in his view, is a compelling basis for affirmative discrimination only in circumstances and settings, such as those found in academia, where “a countervailing constitutional interest, that of the First Amendment,” in the selection of students “is of paramount importance in the fulfillment of [the institution’s] mission.” Id. at 313, 98 S.Ct. at 2760. Seeking racial or ethnic diversity for its own sake in a governmental or government-regulated institution has been soundly rejected. It is synonymous with the illegitimate objective of racial balance or proportional representation and is thus equivalent to “discrimination for its own sake.” Id. at 307, 98 S.Ct. at 2757. Preferring minorities in order to create role-models has been similarly rejected because it too leads inexorably to explicit racial balancing. See Wygant, 476 U.S. at 274-76, 106 S.Ct. at 1847-48 Britton v. South Bend Community School Corp., 819 F.2d 766, 767-68 (7th Cir.) (en banc), cert. denied, — U.S. —, 108 S.Ct. 288, 98 L.Ed. 2d 248 (1987). The goal of racial diversity might be compelling then only when that greater diversity itself" }, { "docid": "10561991", "title": "", "text": "the effects reported. (Id. at 9). According to NAS, “[i]t is possible that the positive outcomes that Gurin catalogues do not require any more racial diversity than that which would occur without racial preferences.” (Id.). This argument, however, does not go to the core issue of whether the educational benefits that flow from a diverse student body constitute a compelling governmental interest, but rather, whether the means employed to achieve that interest are narrowly tailored. This Court is persuaded, based upon the record before it, that a racially and ethnically diverse student body produces significant educational benefits such that diversity, in the context of higher education, constitutes a compelling governmental interest under strict scrutiny. S. Narrowly Tailored Analysis Having determined that the educational benefits flowing from a racially and ethnically diverse student body are a sufficiently compelling interest to survive strict scrutiny, the Court must now determine whether the LSA’s admissions policies for the years at issue (1995-present) were narrowly tailored to achieving that interest. Although Justice Powell found diversity to be a compelling interest in the context of a university’s admissions program, Justice Powell ultimately found that the particular admissions program at issue in Bakke was not a narrowly tailored means of achieving such interest and accordingly, the program was nonetheless unconstitutional.- According to Justice Powell, the fatal flaw in the University of California’s program was that: It tells applicants who are not Negro, Asian, or Chicano that they are totally excluded from a specific percentage of the seats in an entering class. - No matter how strong their qualifications, quantitative and extracurricular, including their -own potential for contribution to educational diversity, they are never afforded the chance to compete with applicants from the preferred groups for the special admissions seats. At the same time, the preferred applicants have the opportunity to compete for every seat in the class. Bakke, 438 U.S. at 318, 98 S.Ct. at 2763. However, “[i]n enjoining [the university] from ever considering the race of any applicant,” the California Supreme Court had “failed to recognize that the State has a substantial interest that legitimately may" } ]

[ { "docid": "4083707", "title": "", "text": "directions to the Arizona District Judge to transfer it back to Florida. But that is what the Arizona Judge did long ago. The difficulty comes from the fact that Judge Fulton, obviously for reasons conscientiously held, differs with the judgment of the Arizona District Judge. The question is: Who is right? Or more precisely, was Judge Fulton right? Is our system of “finality” so rigid, so unrealistic, so inelastic, so impractical that this impasse goes unreviewed because — of all things — it is not “final” ? Not less than a half dozen times since 1960, this Court, following the lead of numerous Supreme Court cases, has held that “finality” for appellate purposes is to be judged in practical terms. And in every one of those cases, we have held orders having no greater “finality” than this one to be appealable. United States v. Wood, 5 Cir., 1961, 295 F.2d 772; Kennedy v. Lynd, 5 Cir., 1962, 306 F.2d 222, 228; Hodges v. Atlantic Coastline R., 5 Cir., 1962, 310 F.2d 438, 443; United States v. Mayton, 5 Cir., 1964, 335 F.2d 153, 157; McCoy v. Louisiana State Board of Educ., 5 Cir., 1964, 332 F.2d 915, 917; Harris v. Gibson, 5 Cir., 1963, 322 F.2d 780, 781; Wright, Federal Courts § 101 (1963). Within the last few weeks, the Court for the second time in that case has again announced the rule in the plainest of language. “In determining what is an appealable order * * *, courts look not to terminology, but to ‘the substantial effect of the order made.’ Ettelson v. Metropolitan Life Ins. Co., 317 U.S. 188, 63 S.Ct. 163, 87 L.Ed. 176; Enelow v. New York Life Ins. Co., 293 U.S. 379, 55 S.Ct. 310, 79 L.Ed. 440; General Electric Co. v. Marvel Rare Metals Co., 287 U.S. 430, 53 S.Ct. 202, 77 L.Ed. 408; Ring v. Spina, 2 Cir., 1948, 166 F.2d 546.” McCoy v. Louisiana State Board of Educ., 5 Cir., 1965, 345 F.2d 720 [No. 21567, May 24, 1965]. In the face of these decisions the cases pressed by the Government and" } ]

[ { "docid": "22997589", "title": "", "text": "Chicago, R.I. & Pac. R.R. v. Igoe, 220 F.2d 299 (7th Cir.), cert. denied, 350 U.S. 822, 76 S.Ct. 49, 100 L.Ed. 735 (1955); In re Josephson, 218 F.2d 174 (1st Cir. 1954); Wiren v. Laws, 90 U.S.App.D.C. 105, 194 F.2d 873 (1951); Atlantic Coast Line R.R. v. Davis, 185 F.2d 766 (5th Cir. 1950); 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). . Factors such as these have been held by the Supreme Court to bear upon the question of appealability of orders as final judgments under 28 U.S.C. § 1257 (respecting the appellate jurisdiction of the Supreme Court), and 28 U.S.C. § 1291 (respecting the appellate jurisdiction of the courts of appeals). Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); Mercantile National Bank at Dallas v. Langdeau, 3,71 U.S. 555, 83 S.Ct. 520, 9 L.Ed.2d 523 (1963); Local No. 438 Construction & General Laborer’s Union v. Curry, 371 U.S. 542, 83 S.Ct. 531, 9 L.Ed.2d 514 (1963); Rosenblatt v. American Cyanamid Co., 86 S.Ct. 1, 15 L.Ed.2d 39 (1965) (Mr. Justice Goldberg, in chambers); Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964); Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962); Hudson Distributors, Inc. v. Eli Lilly & Co., 377 U.S. 386, 84 S.Ct. 1273, 12 L.Ed.2d 394 (1964). See generally C. Wright, Federal Courts, 423 (1963); Dyk, Supreme Court Review of Interlocutory State Court Decisions: “The Twilight Zone of Finality,” 19 Stanford L.Rev. 907 (1967) ; Frank, Requiem for the Final Judgment Rule, 45 Texas L.Rev. 292 (1966); Note, The Requirement of a Final Judgment or Decree for Supreme Court Review of State Courts, 73 Yale L.J. 515 (1964). These holdings may well cast doubt on the rule against appealability of § 1404 (a) and § 1406(a) orders (footnotes 4 and 5, supra). The specification of factors that should control on the decision to grant prompt review does, however, provide" }, { "docid": "22295942", "title": "", "text": "F.2d 1228, 1231 (5th Cir. 1973); Frankfort Oil Co. v. Snakard, 279 F.2d 436, 438 (10th Cir.), cert. denied, 364 U.S. 920, 81 S.Ct. 283, 5 L.Ed.2d 259 (1960). In Jetco, the district court dismissed the action as to one of three defendants, and several months later entered an agreed judgment as to the other defendants. Although neither was written as a final order, and the appellant had failed to obtain a Rule 54(b) certificate, the court found that: [Tjhese two orders, considered together, terminated this litigation just as effectively as would have been the case had the district judge gone through the motions of entering a single order formally reciting the substance of the earlier two orders. Mindful of the Supreme Court’s command that practical, not technical, considerations are to govern the application of principles of finality, Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964); Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), we decline appellee’s invitation to exalt form over substance by dismissing this appeal. Jeteo Electronics Indus., Inc. v. Gardiner, supra, 473 F.2d at 1231. We find this analysis persuasive. Nor do we believe such a result is foreclosed because it is based upon developments occurring subsequent to the appeal. Analogously, subsequent events can validate a prematurely filed appeal. See, e. g., Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Lemke v. United States, 346 U.S. 325, 74 S.Ct. 1, 98 L.Ed. 3 (1953) (per curiam) (criminal appeal); Ruby v. Secretary of Navy, 365 F.2d 385, 389 (9th Cir. 1966) (en banc), cert. denied, 386 U.S. 1011, 87 S.Ct. 1358, 18 L.Ed.2d 442 (1967); Firchau v. Diamond Nat’l Corp., 345 F.2d 269, 271 (9th Cir. 1965). In both Ruby and Firchau, we entertained appeals from non-final orders granting motions of dismissal. We did so because the district court had subsequently entered judgment based on the order appealed from. These cases provide clear examples of giving a practical rather than a technical construction to the finality rule," }, { "docid": "14155380", "title": "", "text": "applies to appeals arising under either § 1293 or § 1291. See Matter of International Horizons, Inc., 689 F.2d 996, 1000 n. 6 (11th Cir.1982) (“final order” jurisprudence developed in the context of § 1291 applies to § 1293 appeals); In re Regency Woods Apartments, Ltd., 686 F.2d 899, 901 (11th Cir. 1982) (“[sjection 1293(b) incorporates the principle of finality as used in Fed.R.Civ.P. 54(a)”). . This court is urged to find that the district court’s order is appealable under exceptions to the final judgment rule. See Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964); Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); Forgay v. Conrad, 47 U.S. (6 How.) 201, 12 L.Ed. 404 (1848). There has been no showing that a \"danger of denying justice by delay” brings this case within the Gillespie doctrine. Gillespie, 379 U.S. at 153, 85 S.Ct. at 311 (quoting Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 70 S.Ct. 322, 94 L.Ed. 299 (1950)). See also CTI-Container Leasing Corp. v. Uiterwyk Corp., 685 F.2d 1284, 1287 (11th Cir.1982), cert. denied, 459 U.S. 1173, 103 S.Ct. 820, 74 L.Ed.2d 1017 (1983). Similarly, the record does not explain why prompt review is necessary to protect important interests or protect a party from irreparable injury. For this reason, neither the Cohen collateral order doctrine nor the Forgay-Conrad rule applies. See In re Charter Co., 778 F.2d 617, 622 (11th Cir.1985); In re Regency Woods Apartments, Ltd., 686 F.2d 899, 902 (11th Cir.1982)." }, { "docid": "22728808", "title": "", "text": "to consider a “practical rather than a technical” construction of the remand order, citing Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964); and our decision in Maier v. Orr, 754 F.2d 973 (Fed.Cir.1985), arguing that the order is final and appeal-able because it finally determines the controlling issue in the case. One statutory exception to the final judgment rule, found in 28 U.S.C. § 1292(d)(1), provides a means for a judge of the Court of International Trade to certify for appeal an order not otherwise appealable and allows this court in its discretion to permit appeal of such a certified order. We note in the present case that the government chose not to invoke this exception by requesting the trial court to certify the order. Compare McCoy v. Schweiker, 683 F.2d 1138, 1141 & n. 2 (8th Cir.1982) (en banc) (district court certified for interlocutory appeal under 28 U.S.C. § 1292(b)) with Matter of Riggsby, 745 F.2d 1153, 1156 (7th Cir.1984) (even though remand order is not a final decision, this just means that the order is not automatically appealable; it may be appealable under one of the special procedures for interlocutory appeals such as 28 U.S.C. § 1292(b); but, Riggsby made no effort to appeal under § 1292(b)). The Supreme Court has narrowly circumscribed non-statutory exceptions to the final judgment rule. “The importance of the final judgment rule has led the Court to permit departures from the rule ‘only when observance of it would practically defeat the right to any review at all.’ ” Flanagan v. United States, 465 U.S. at 265, 104 S.Ct. at 1055 (quoting Cobbledick v. United States, 309 U.S. 323, 324-25, 60 S.Ct. 540, 541, 84 L.Ed. 783 (1940)). Recent decisions have stated that departure will be allowed only for the limited category of cases falling within the “collateral order” exception delineated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). See, e.g.," }, { "docid": "7834622", "title": "", "text": "permission to the defendants to serve an offer of judgment directly on the individual class members. The appellee first challenges the right of appellants to prosecute this appeal, contending that the trial court issued no “final” judgment as contemplated by 28 U.S.C. § 1291. With respect to the other issues appellee relies upon the contention that the trial court properly exercised its discretion. APPEALABILITY Courts of appeals of the United States have jurisdiction of appeals from all final decisions of the district courts of the United States. 28 U.S.C. § 1291. Other than jurisdiction granted to courts of appeals from certain interlocutory orders as granted under 28 U.S.C. § 1292 the finality requirement of section 1291 governs except as modified by the Supreme Court’s decisions in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) and Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964). In Cohen, the Supreme Court recognized a need to provide appeal in those situations where an order was not practicably remediable on final appeal. The Court held that the district court’s refusal to order plaintiff in a shareholder’s derivative action to post security for costs, required by a New Jersey statute, fell within “that small class which finally determined claims of right separable from, and collateral to, the rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” 337 U.S. at 546, 69 S.Ct. at 1225. The Court of Appeals for the Fifth Circuit has discussed the meaning of Gillespie v. United States Steel Corp., supra. In United States v. Mississippi Power & Light Co., 638 F.2d 899 (5th Cir. 1981), the Court said: Gillespie v. United States Steel Corp., 1964, 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199, furnishes the analytical framework for determining whether these orders are final within the meaning of § 1291. As that case points out, “a decision final within the meaning of §" }, { "docid": "22150625", "title": "", "text": "(Fed.Cir.1984). Cf. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949) (addressing the “final” language in section 1291). This “final order rule” reflects “a strong congressional policy against piecemeal reviews and against obstructing or impeding an ongoing judicial proceeding by interlocutory appeals.” United States v. Nixon, 418 U.S. 683, 690, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (citations omitted). However, it is well established that some orders, which do not terminate the underlying litigation, are appealable as a collateral order “exception” to the finality requirement, Richardson-Merrell, Inc. v. Roller, — U.S. -, 105 S.Ct. 2757, 2761, 86 L.Ed.2d 340 (1985); Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978); Panduit Corp., 744 F.2d at 1571-72, 223 USPQ at 469, because they are final in effect. Appealability of orders is not decided by rote. Horizons Titanium Corp. v. Norton Co., 290 F.2d 421, 423 (1st Cir. 1961). To determine appealability of an order, an appellate court must balance the “ ‘inconvenience and costs of piecemeal review’ against ‘the danger of denying justice by delay.’ ” Premium Service Corp. v. Sperry & Hutchinson Co., 511 F.2d 225, 227 (9th Cir.1975), citing Gillespie v. United States Steel Corp., 379 U.S. 148, 152-53, 85 S.Ct. 308, 311, 13 L.Ed.2d 199 (1964). See Richardson-Merrell, Inc., 105 S.Ct. at 2763. The Court in Cohen first set forth the three-part test for determining whether an order is final enough to be appealable: [T]he order must [1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] be effectively unreviewable on appeal from a final judgment. Coopers & Lybrand, 437 U.S. at 468, 98 S.Ct. at 2458 (footnote omitted). See Baker Perkins, Inc. v. Werner & Pfleiderer Corp., 710 F.2d 1561, 1564, 218 USPQ 577, 578-79 (Fed.Cir.1983). Heat & Control’s appeal meets the first two of the criteria because the district court determined a discovery issue concerning a nonparty to the infringement and validity suit in a proceeding ancillary to the" }, { "docid": "4083319", "title": "", "text": "is not yet foreclosed. For we have often held that even after denial by us of the requested relief, the parties are free to resubmit the matter to the trial Court and if that Court entertains the resubmission, the ruling thereon can be made the subject of a timely interlocutory appeal if accompanied with the appropriate certificate. Of course, the Plaintiff is entitled to a trial, and without delay. But Federal Courts under pressure to handle a mounting load of urgent cases have the right, if not the duty, to husband carefully these precious and limited resources. A useless trial is a luxury none can afford. Without abandoning the proven policy against piecemeal appeals, there surely must be a way here to obtain an authoritative ruling which will avoid that. . Bush v. United Benf. Fire Ins. Co., 5 Cir. 1963, 311 F.2d 893. . The concept of finality has, of course, been imbued with significant strands of elasticity in the “collateral order” cases. Cohen v. Beneficial Loan Indus. Corp., 1949, 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528. . See United States v. Wood, 5 Cir., 1961, 295 F.2d 772, 778 and cases cited; Auerbach v. United States, 5 Cir., 1965, 347 F.2d 742 (dissenting opinion) [June 18, 1965]; see also Gillespie v. United States Steel Corp., 1964, 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199. . The Taxpayer Plaintiff is pursuing the theory adopted by the jury verdict which we upheld in United States v. Crawford Packing Co., 5 Cir., 1964, 330 F.2d 194. . Even if impleader is allowed, F.R.Civ.P. 42(b) would empower the trial Judge to order a separate trial. . United States v. Mayton, 5 Cir., 1964, 335 F.2d 153, 162-163; Hill v. Federal Power Comm’n, 5 Cir., 1964, 335 F.2d 355, 364-365; Benson v. United States, 5 Cir., 1964, 332 F.2d 288, 292; Younger Bros. Inc. v. United States, S.D.Texas (3-Judge), 1965, 238 F.Supp. 859, 861-862. . E.g., mandamus, prohibition, or dismissal of appeal. . See Borskey v. American Pad & Textile Co., 5 Cir., 1961, 296 F.2d 894; In re" }, { "docid": "3368166", "title": "", "text": "significant, but undecided question of law. In the present case, there was no certification. Because the ruling was neither certified for appeal nor a final decision, the appeal will lie only if it is within a class of exceptions to the final decision rule. The relevant exception was cut in Cohen v. Beneficial Industrial Loan Corp., 1949, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528, and embroidered in Gillespie v. U. S. Steel Corp., 1964, 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199. It concerns “collateral” orders, and embraces “that small class [of interlocutory orders] which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated”. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1226, 93 L.Ed. 1528. Interlocutory orders are not lightly considered within the Cohen ambit. In In re Nissan Motor Corp. Antitrust Litigation, 5 Cir. 1977, 552 F.2d 1088, we noted that for an interlocutory order to be a member of the class of exceptions, “(1) the substance of [the order] must be independent and easily separable from the substance of other claims, (2) at least part of the question of collateralness is determined by the need to secure prompt review in order to protect important interests of any party, and (3) the finality issue is to be examined in the light of practical, rather than narrowly technical, considerations”. Id. at 1094-95 (quoting Diaz v. Southern Drilling Co., 5 Cir. 1970, 427 F.2d 1118, 1123, cert. denied, 400 U.S. 878, 91 S.Ct. 118, 27 L.Ed.2d 115). Applying this three-part test, we take jurisdiction under Cohen. The first requirement is that the order be “independent and easily separable from the substance of other claims”. The core contention in the part of Avoca’s answer that the district court struck was that its claim for compensation was triable in the condemnation proceeding. Avoca’s argument is essentially a procedural objection to the conduct" }, { "docid": "4083320", "title": "", "text": "69 S.Ct. 1221, 93 L.Ed. 1528. . See United States v. Wood, 5 Cir., 1961, 295 F.2d 772, 778 and cases cited; Auerbach v. United States, 5 Cir., 1965, 347 F.2d 742 (dissenting opinion) [June 18, 1965]; see also Gillespie v. United States Steel Corp., 1964, 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199. . The Taxpayer Plaintiff is pursuing the theory adopted by the jury verdict which we upheld in United States v. Crawford Packing Co., 5 Cir., 1964, 330 F.2d 194. . Even if impleader is allowed, F.R.Civ.P. 42(b) would empower the trial Judge to order a separate trial. . United States v. Mayton, 5 Cir., 1964, 335 F.2d 153, 162-163; Hill v. Federal Power Comm’n, 5 Cir., 1964, 335 F.2d 355, 364-365; Benson v. United States, 5 Cir., 1964, 332 F.2d 288, 292; Younger Bros. Inc. v. United States, S.D.Texas (3-Judge), 1965, 238 F.Supp. 859, 861-862. . E.g., mandamus, prohibition, or dismissal of appeal. . See Borskey v. American Pad & Textile Co., 5 Cir., 1961, 296 F.2d 894; In re Humble Oil & Refg. Co., 5 Cir., 1962, 306 F.2d 567 and cases there cited; Ex parte Tokio Marine & Fire Ins. Co. (Ex parte Aetna Cas. & Sur. Co.), 5 Cir., 1963, 322 F.2d 113." }, { "docid": "23689312", "title": "", "text": "337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). . The Court refers here to 28 U.S.C. § 1291 (1964). . Id. at 546-547, 69 S.Ct. at 1225 (citations omitted). . Roberts v. United States District Court, 339 U.S. 844, 845, 70 S.Ct. 954, 94 L.Ed. 1326 (1950) (order denying leave to appeal in forma pauperis); Stack v. Boyle, 342 U.S. 1, 6, 72 S.Ct. 1, 96 L.Ed. 3 (1951) (order denying reduction of bail); Local 438, Construction Laborers v. Curry, 371 U.S. 542, 548-550, 83 S.Ct. 531, 9 L.Ed.2d 514 (1963) (state court judgment resolving jurisdiction to adjudicate labor controversy); Mercantile Nat’l Bank v. Langdeau, 371 U.S. 555, 557-558, 83 S.Ct. 520, 9 L.Ed.2d 523 (1963) (state court judgment resolving venue of suit against national bank). See also Di Bella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962). . Phelps v. Burnham, 327 F.2d 812, 813-814 (2d Cir. 1964) (order alternatively requiring security); Chabot v. National Secs. & Research Corp., 290 F.2d 657, 658-659 (2d Cir. 1961) (orders staying actions pending posting of security); United States v. Wood, 295 F.2d 772, 776-778 (5th Cir. 1961), cert. denied 369 U.S. 850, 82 S.Ct. 933, 8 L.Ed.2d 9 (1962) (order denying temporary restraining order against state criminal prosecution); United States v. Mayton, 335 F.2d 153, 157-158 (5th Cir. 1964) (orders in voting rights action on individual applications for orders declaring applicants qualified to vote); Covey Oil Co. v. Con tinental Oil Co., 340 F.2d 993, 995-997 (10th Cir.), cert. denied 380 U.S. 964, 85 S.Ct. 1110, 14 L.Ed.2d 155 (1965) (order denying motion to quash subpoena duces tecum requiring nonparty witness to disclose trade secrets). See also Amdur v. Lizars, 372 F.2d 103, 105-106 (4th Cir. 1967) (order staying action while earlier similar action was undecided). . . Swift & Co. Packers v. Compania Colombiana Del Caribe, 339 U.S. 684, 688-689, 70 S.Ct. 861, 94 L.Ed. 1206 (1950) (order vacating foreign attachment of vessel); Chilean Line Inc. v. United States, 344 F.2d 757, 759 (2d Cir. 1965) (denial of writ of foreign attachment in admiralty);" }, { "docid": "2389107", "title": "", "text": "J. JOSEPH SMITH, Circuit Judge: The Secretary of Labor appeals from an order of the United States District Court for the Eastern District of New York, Joseph C. Zavatt, Chief Judge, vacating a temporary restraining order issued against Powell Knitting Mills, Inc. and against Meinhard Commercial Corp. Powell has not appeared. As a general rule, it is true, the denying or vacating of a temporary restraining order is not appealable. Austin v. Altman, 332 F.2d 273 (2 Cir. 1964). But this is not always so. In the first place, the appellate court is not bound by what the parties or the District Court may call the order appealed from. That is not this case, for there is no doubt that the original ex parte order was a temporary restraining order. The order vacating it, therefore, though after a hearing, and contested, is an order vacating a temporary restraining order. Compare Austin; see also Grant v. United States, 282 F.2d 165 (2 Cir. 1960). But there is another reason in some cases for appealability of the granting, denial, or vacating of a temporary restraining order. Where dismissing the appeal may moot the underlying ease for an injunction, the appeal should be heard. United States v. Wood, 295 F.2d 772, 776-778 (5 Cir. 1961), cert. den. 369 U.S. 850, 82 S.Ct. 933, 8 L.Ed.2d 9 (1962); Woods v. Wright, 334 F.2d 369, 373-374 (5 Cir. 1964); Dilworth v. Riner, 343 F.2d 226, 229-230 (5 Cir. 1965). The rationale of these cases is that the matter is appeal-able not under 28 U.S.C. § 1292, dealing with injunctions, but rather under § 1291, under the collateral order doctrine, Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Here dismissing the appeal, together with refusing to continue the stay ordered by Judge Lumbard, could very well moot the whole case, for Meinhard could dispose of the sweaters before Judge Zavatt acted on the request for a preliminary injunction. Hence the matter is appealable quite apart from the fact that both parties were heard on the motion, and that" }, { "docid": "22295941", "title": "", "text": "See Stevens v. Security Pacific Nat’l Bank, 538 F.2d 1387, 1388 (9th Cir. 1976). This is true even if, as here, the jurisdiction issue is raised by neither of the parties. Burkhart v. United States, 210 F.2d 602, 605 (9th Cir. 1954). In the case before us, however, that portion of the ease remaining in the district court has subsequently been disposed of. In an order filed November 27, 1978, the district court dismissed the federal claim as to the remaining defendants and remanded the state claims to state court. The issue presented is whether, in light of these subsequent developments, we should treat the orders appealed from as final orders. We conclude that we should, and that we therefore have appellate jurisdiction to hear the merits of this case. Although this is an issue of first impression in this circuit, two other circuits have held that orders adjudicating only some of the claims may be treated as final orders if the remaining claims have subsequently been finalized. Jetco Electronic Indus., Inc. v. Gardiner, 473 F.2d 1228, 1231 (5th Cir. 1973); Frankfort Oil Co. v. Snakard, 279 F.2d 436, 438 (10th Cir.), cert. denied, 364 U.S. 920, 81 S.Ct. 283, 5 L.Ed.2d 259 (1960). In Jetco, the district court dismissed the action as to one of three defendants, and several months later entered an agreed judgment as to the other defendants. Although neither was written as a final order, and the appellant had failed to obtain a Rule 54(b) certificate, the court found that: [Tjhese two orders, considered together, terminated this litigation just as effectively as would have been the case had the district judge gone through the motions of entering a single order formally reciting the substance of the earlier two orders. Mindful of the Supreme Court’s command that practical, not technical, considerations are to govern the application of principles of finality, Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964); Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), we decline appellee’s invitation to" }, { "docid": "23045282", "title": "", "text": "28 U.S.C. § 1291 gives the courts of appeals jurisdiction to review appeals from all final decisions of the district courts. It appears clear to us that here where the district court entered an order denying the motions for summary judgment and reversing the decision of the Secretary and remanding the case to the Secretary for a full new hearing, in accordance with his order of remand, the case is an appealable one. See Jamieson v. Folsom, 7 Cir., 1963, 311 F.2d 506, cert. denied, 374 U.S. 487, 83 S.Ct. 1868, 10 L.Ed.2d 1043 (1963); Gardner v. Moon, 8 Cir., 1966, 360 F.2d 556, 558, and Celebrezze v. Lightsey, 5 Cir., 1964, 329 F.2d 780. Also, we think the remand order is final within the meaning of 28 U.S.C. § 1291. The finality requirement of this section has usually been given a practical rather than a technical construction. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); Gillespie v. United States Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964). It should be noted that not all orders under 42 U.S.C. § 405(g) are appealable. In situations where the Secretary moves the court before he files an answer, or at the request of either party, the court remands the case for additional evidence, the order would not be appeal-able. An order remanding the case for additional or supplementary evidence, without a review by the court of the administrative record nor a decision by it on the substantial evidence question, is without doubt an interlocutory order and is not appealable. Likewise, an order sua sponte by the court for the taking of additional evidence is not appealable. Bohms v. Gardner, 8 Cir., 1967, 381 F.2d 283, cert. denied, 390 U.S. 964, 88 S.Ct. 1069, 19 L.Ed.2d 1164 (1968). In the case before us, the court not only denied the motions for summary judgment and reversed the decision of the Secretary, but also established standards for the admission of hearsay evidence and indicated that hearsay evidence is not substantial evidence." }, { "docid": "4083318", "title": "", "text": "inventiveness to avoid useless imposition on a Court as overburdened as the Southern District of Texas. Several courses were —and for that matter still are — open. First, since the impleaded third party defendants entered an appearance and successfully moved to dismiss it, the third party complaint satisfied all that the rules require to constitute an original, protective suit by the Government against these vessel’ captains. F.R. Civ.P. 8(a). If it was thought that anything was to be gained by filing a separately numbered and docketed complaint against these same persons as defendants, deferring a ruling on the motion to dismiss the third party complaint until those suits were filed would have enabled the trial Court to exercise its discretion and determine whether, as indicated, consolidation for trial would be permitted. That would have washed out the problem of a third party complaint. Finally, with all of the uncertainties on “finality” and “appealability” this appears to have been an ideal case for certification as an interlocutory appeal under 28 U.S.C.A. § 1292(b). Indeed, this route is not yet foreclosed. For we have often held that even after denial by us of the requested relief, the parties are free to resubmit the matter to the trial Court and if that Court entertains the resubmission, the ruling thereon can be made the subject of a timely interlocutory appeal if accompanied with the appropriate certificate. Of course, the Plaintiff is entitled to a trial, and without delay. But Federal Courts under pressure to handle a mounting load of urgent cases have the right, if not the duty, to husband carefully these precious and limited resources. A useless trial is a luxury none can afford. Without abandoning the proven policy against piecemeal appeals, there surely must be a way here to obtain an authoritative ruling which will avoid that. . Bush v. United Benf. Fire Ins. Co., 5 Cir. 1963, 311 F.2d 893. . The concept of finality has, of course, been imbued with significant strands of elasticity in the “collateral order” cases. Cohen v. Beneficial Loan Indus. Corp., 1949, 337 U.S. 541, 546," }, { "docid": "8591188", "title": "", "text": "sources within the Department of Labor had informed him that the Secretary’s decision not to bring suit was based on considerations wholly extraneous to the statute. This, Mr. Bachowski insisted, was the precise situation that the Supreme Court’s provision for expanded review in “rare cases” was meant to rectify. See Verified Motion for Further Proceedings and Further Relief on Remand, at 3-5, App. at 47 — 49. . Bachowski v. Brennan, 405 F.Supp. 1227 (W.D.Pa.1975). . Bachowski v. Brennan, 413 F.Supp. 147 (W.D.Pa.1976). . See, e. g., Gillespie v. United States Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964); Cobbledick v. United States, 309 U.S. 323, 324, 60 S.Ct. 540, 84 L.Ed. 783 (1940); In re Good Deal Supermarkets, Inc., 528 F.2d 710 (3d Cir. 1975); United States v. Estate of Pearce, 498 F.2d 847, 849 (3d Cir. 1974) (en banc); 9 J. Moore, Federal Practice ¶ 110/06 (2d ed. 1975); 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3905 (1976). The finality requirement has been the subject of much scholarly commentary. See, e. g., Crick, The Final Judgment as a Basis for Appeal, 41 Yale L.J. 539 (1932); Frank, Requiem for the Final Judgment Rule, 45 Tex.L.Rev. 292 (1966); Redish, The Pragmatic Approach to Appealability in the Federal Courts, 75 Colum.L.Rev. 89 (1975); Note, Appealability in the Federal Courts, 75 Harv.L.Rev. 351 (1961). . See, e. g., Radio Station WOW, Inc. v. Johnson, 326 U.S. 120, 123-24, 65 S.Ct. 1475, 89 L.Ed. 2092 (1945); Cobbledick v. United States, 309 U.S. 323, 325, 60 S.Ct. 540, 84 L.Ed. 783 (1940); Sun Shipbuilding & Dry Dock Co. v. Benefits Review Bd., 535 F.2d 758, 760 (3d Cir. 1976) (per curiam); 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3907 (1976). . See, e. g., Gillespie v. United States Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 311, 13 L.Ed.2d 199 (1964); Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); In re Grand Jury Proceedings, 525 F.2d" }, { "docid": "22126810", "title": "", "text": "obstacle to our hearing this appeal. The trial court’s division of the class into two subclasses arguably makes this a multi-party action subject to the requirements of Fed.R.Civ.P. 54(b). In an order following its approval of the subclass settlement, the trial court refused to make a determination that there was no just reason for delay and to direct entry of judgment. We hold that, despite the refusal of the trial court to enter judgment pursuant to Rule 54(b), we have jurisdiction to review the order approving the subclass settlement as a collateral order. The Supreme Court has taken an “intensely practical” approach when deciding whether judgments are appealable. Mathews v. Eldridge, 424 U.S. 319, 331 n.11, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). In close cases the determination must be made by balancing the “inconvenience and costs of piecemeal review” against “the danger of denying justice by delay.” Gillespie v. United States Steel Corp., 379 U.S. 148, 152-53, 85 S.Ct. 308, 311, 13 L.Ed.2d 199 (1964). We are cognizant that the federal policy against piecemeal review admits no exception merely because the judgment appealed from affects the conduct of a class action. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978) (striking the death knell for the death knell doctrine); Weit v. Continental Illinois National Bank & Trust, 535 F.2d 1010 (7th Cir. 1976) (order requiring notice to class members is not a collateral order). We believe, however, that although the federal courts have narrowly interpreted the collateral order doctrine established in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), that this case falls within “that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Id. at 546, 69 S.Ct. at 1226. The first requirement of the collateral order doctrine is that the matter appealed from must have been finally" }, { "docid": "13968115", "title": "", "text": "falls within the collateral order exception of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and within the doctrine of Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964). Regency Woods held that such appeals are subject to the Cohen exception. Brookside has not made a sufficient showing to invoke that exception. Now is not the time to review the district court’s direction to the bankruptcy court under 28 U.S.C.A. § 157(b)(2). In holding that we are without jurisdiction to hear the instant appeal, the Court expresses no opinion on the merits of the district court’s decision that the bankruptcy court’s findings of fact and conclusions of law are subject to de novo review by the district court. That issue should await determination until the appropriate stage of the proceedings. The appeal is dismissed for lack of jurisdiction. DISMISSED. LEWIS R. MORGAN, Senior Circuit Judge, dissenting: I respectfully dissent from the opinion of the majority. While I agree that ordinarily a decision of the district court reversing and remanding an order of the bankruptcy court for the taking of further proceedings would fall within the “interlocutory order” concept and would not rise to the status of a final order, I would find the collateral order exception to that general rule applicable under the exceptional circumstances involved in this case. Under the collateral order doctrine, as set forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), for a non-final order to be appealable to this court, that order must: (1) be independent and easily separable from the substance of other claims in the action; (2) present a need to secure prompt review in order to protect important interests of any party; and (3) be examined in the light of practical, rather than narrowly technical, considerations. In re Regency Woods Apartments, Ltd., 686 F.2d 899 (11th Cir.1982). These factors have been met to my satisfaction in this case. The propriety of the district court’s order of remand, which" }, { "docid": "944407", "title": "", "text": "modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court. . 436 F.2d at 862. . Gillespie v. United States Steel Corp., 379 U.S. 148, 152-53, 85 S.Ct. 308, 311, 13 L.Ed.2d 199 (1964), quoting Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). . The litigation in Kelley began fifteen years prior to the stay, a circumstance to which the court of appeals gave considerable weight. 436 F.2d at 858. . Bachowski v. Usery, 545 F.2d 363, 373 (3d Cir. 1976). See also Rodgers v. United States Steel Corp., 508 F.2d 152, 159 (3d Cir. 1975), cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (“[T]his Court has always read Cohen as a narrow rather than an expansive exception to the final judgment rule”); Hackett v. General Host Corp., 455 F.2d 618 (3d Cir.), cert. denied, 407 U.S. 925, 92 S.Ct. 2460, 32 L.Ed.2d 812 (1972). . Bachowski v. Usery, 545 F.2d 363, 371 (3d Cir. 1976). . Section 1292(b) provides in pertinent part as follows: (b) When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order . Bachowski v. Usery, 545 F.2d 363, 373 (3d Cir. 1976); Hackett v. General Host Corp., 455 F.2d 618, 623-24 (3d Cir.), cert. denied, 407 U.S. 925, 92 S.Ct. 2460, 32 L.Ed.2d 812 (1972). . Gillespie v. United States Steel Corp., 379 U.S. 148, 152-53, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964). . Judge Adams’s opinion" }, { "docid": "22465378", "title": "", "text": "filing a notice of appeal does not begin to run until all of the claims among all of the parties have been resolved. Fed.R.Civ.P. 54(b). Since the district court never certified any of its interlocutory orders for appeal, the appellant’s thirty days did not commence until the district court entered its final order on November 9 — twenty-seven days prior to the December 6 filing of Grant’s notice of appeals. ___ The appellees assert that the rules of Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964), and Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), started the appealability clock prior to the resolution of all claims below. We disagree. The exceptions to the final judgment rule cited by the appellees permit parties, in certain limited circumstances, to appeal orders that are not final. They do not require parties to file immediate appeals. See In Re Chicken Antitrust Litig. American Poultry, 669 F.2d 228, 236 (5th Cir.1982); Gloria S.S. Co. v. Smith, 376 F.2d 46, 47 (5th Cir. 1967). As we stated in In Re Chicken, “Stripped to its essentials, this argument would require parties to take all interlocutory appeals or face the possibility of losing their right to appeal questions that are arguably related to the collateral order. Making interlocutory appeals mandatory in this manner would turn the policy against piecemeal appeals on its head.” Id. at 236. . On this basis, some courts have held that a dismissal with prejudice is not discretionary, but instead must be granted if requested by the plaintiff. In Smoot for example, the court issued a writ of mandamus to the district court to grant the plaintiff's motion to dismiss with prejudice, stating \"We know of no power in a trial judge to require a lawyer to submit evidence on behalf of a plaintiff, when he considers he has no cause of action or for any reason wishes to dismiss his action with prejudice, the client being agreeable. A plaintiff should have the same right to refuse to" }, { "docid": "7834623", "title": "", "text": "order was not practicably remediable on final appeal. The Court held that the district court’s refusal to order plaintiff in a shareholder’s derivative action to post security for costs, required by a New Jersey statute, fell within “that small class which finally determined claims of right separable from, and collateral to, the rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” 337 U.S. at 546, 69 S.Ct. at 1225. The Court of Appeals for the Fifth Circuit has discussed the meaning of Gillespie v. United States Steel Corp., supra. In United States v. Mississippi Power & Light Co., 638 F.2d 899 (5th Cir. 1981), the Court said: Gillespie v. United States Steel Corp., 1964, 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199, furnishes the analytical framework for determining whether these orders are final within the meaning of § 1291. As that case points out, “a decision final within the meaning of § 1291 does not necessarily mean the last order possible to be made in a case.” Id. at 152, 85 S.Ct. at 310. Thus, although the withholding of injunctive relief and retention of jurisdiction by the district courts in these cases makes it possible that they will be called on to issue another order to enforce their decisions, that fact alone is not dispositive on the issue of finality. Thoms v. Heffernan, 2 Cir. 1973, 473 F.2d 478, vacated on other grounds, 1974, 418 U.S. 908, 94 S.Ct. 3199, 41 L.Ed.2d 1154. Rather, Gillespie dictates that we give the finality requirement a “practical rather than a technical construction” and that the chief countervailing considerations are “the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other.” 379 U.S. at 152-53 [85 S.Ct. at 310-11] (quoting Cohen v. Beneficial Industrial Loan Corp., 1949, 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 and Dickinson v. Petroleum Conversion Corp., 1949, 338 U.S. 507, 511, 70" } ]

[ { "docid": "2760608", "title": "", "text": "and that there were no geographical limitations on buyers. Bochan moreover states that all defendants knew that he resides and works in Virginia, and that the reputational harm, as well as the emotional distress, would be suffered in Virginia. II. All defendants move to dismiss the complaint pursuant to Rule 12(b)(2), Fed.R.Civ.P., for lack of personal jurisdiction. When the exercise of personal jurisdiction is challenged pursuant to Rule 12(b)(2), Fed.R.Civ.P., the question “is one for the judge, with the burden on the plaintiff ultimately to prove the existence of a ground for jurisdiction by the preponderance of the evidence.” See Combs v. Bakker, 886 F.2d 673, 676 (4th Cir.1989). When a court rules on this issue in reliance upon the complaint and affidavits alone, a plaintiff need only make a prima facie showing of a sufficient jurisdictional basis to survive the jurisdictional challenge. M Specifically, a plaintiff in Virginia must make a prima facie showing that first, Virginia’s long-arm statute reaches the non-resident defendant given the cause of action alleged and the nature of the defendant’s Virginia contacts, and second, that the exercise of personal jurisdiction in the circumstances is consistent with due process, that is, that the long-arm statute’s reach in the circumstances does not exceed its constitutional grasp. See DeSantis v. Hafner Creations, Inc., 949 F.Supp. 419, 422 (E.D.Va.1996); see also Peanut Corp. of Am. v. Hollywood Brands, Inc., 696 F.2d 311, 313 (4th Cir.1982). Although Virginia’s long-arm statute extends personal jurisdiction “to the outmost perimeters of due process,” it nonetheless appears that it is possible “for the contacts of a non-resident defendant to satisfy due process but not meet the specific grasp of a Virginia long-arm statute provision.” Bochan contends that jurisdiction exists over all defendants on the basis of two separate prongs of Virginia’s long arm statute, Va.Code § 8.01-328.1(A)(3), and § 8.01-328.1(A)(4). Under § 8.01-328.1(A)(3), a court may exercise personal jurisdiction over a defendant who causes “tortious injury by an act or omission in this Commonwealth.” See Va.Code § 8.01-328.1(A)(3). Under § 8.01-328.1(A)(4), a court may exercise personal jurisdiction over a defendant who causes “tortious" } ]

[ { "docid": "12601978", "title": "", "text": "plaintiff are presently in plaintiffs possession in this forum. In any event, the volume of documents pertinent to this case is not likely large enough to affect the transfer calculus. Factors relevant to the interests of justice are similarly inconclusive, and thus favor the denial of transfer. While defendant correctly argues that Florida substantive law will govern the interpretation of the contract at issue, the fact that the courts of the Middle District of Florida are likely to be more familiar with the law relevant to this case is offset by the docket condition in this district, where disputes are generally resolved in less than half the time that they are in defendant’s preferred forum. In sum, defendant has failed to show that either convenience-related factors or the interests of justice weigh heavily in favor of transferring this action from plaintiffs home forum to the Middle District of Florida. Plaintiffs choice of forum, therefore, will not be disturbed. Conclusion For the foregoing reasons, defendant’s motion is denied. . The facts recited here are derived from the parties’ pleadings, moving papers, and supporting affidavits, with conflicts resolved in favor of plaintiff as the non-movant. See My-lan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 59-60 (4th Cir.1993); Precept Med. Prods, v. Klus, 282 F.Supp.2d 381, 384 (W.D.N.C.2003). . A threshold prima facie finding that personal jurisdiction is proper does not finally settle the issue; plaintiff must eventually prove the existence of personal jurisdiction by a preponderance of the evidence, either at trial or at a pretrial evidentiary hearing. Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981). . Plaintiff initially argued that subsection (A)(4) of the long-arm statute, which allows for personal jurisdiction over a defendant \"causing tortious injury” in Virginia (if certain other conditions are met), provided an alternative basis for personal jurisdiction here. See Va.Code § 8.01-328.1(A)(4) (2004). At oral argument, however, plaintiff conceded that its failure to allege a tortious cause of action in its complaint precludes a finding of personal.jurisdiction on this basis. .Compare English & Smith, 901 F.2d at 39 (finding jurisdiction" }, { "docid": "15347658", "title": "", "text": "jurisdiction in order to proceed in rem,\" and \"bear[s] the burden to demonstrate some indicia of due diligence in trying to establish personal jurisdiction over an individual who has been identified as a potential defendant but is not subject to jurisdiction.”). . Because the Virginia long-arm statute extends personal jurisdiction to the fullest extent permitted by due process, the first inquiry is often merged into the second. See Kolbe v. Chromodern Chair Co., 211 Va. 736, 180 S.E.2d 664, 667 (1971); English & Smith v. Metzger, 901 F.2d 36, 38 (4th Cir.1990); America Online, 106 F.Supp.2d at 854. It is possible, however, for the contacts of a nonresident defendant to satisfy due process but not the requirements of the Virginia long-arm statute. See, e.g., TELCO Communications v. An Apple A Day, 977 F.Supp. 404, (E.D.Va.1997); DeSantis, 949 F.Supp. at 423. Accordingly, consideration of the applicability of the Virginia long-arm statute is necessary. . See TELCO, 977 F.Supp. at 407 (holding that a defendant who \"conduct[s] ... advertising and soliciting over the Internet, which could be accessed by a Virginia resident 24 hours a day, ... did so regularly for purposes of the long-arm statute”); Rannoch, Inc. v. The Rannoch Corp., 52 F.Supp.2d 681, 684 (E.D.Va.1999) (noting that a website that \"promotes and advertises its services and is accessible to Virginians 24 hours a day” satisfies Va.Code § 8.01-328.1 (A)(4)); Black & Decker (U.S.) Inc. v. Pro-Tech Power Inc., 26 F.Supp.2d 834, 842 (E.D.Va.1998) (holding that \"defendants regularly solicit business in this state insofar as each of them advertises their products on World Wide Web sites.”). . Asahi Metal Indus. Co. v. Superior Court of Ca., 480 U.S. 102, 112, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (plurality opinion); Lesnick v. Hollingsworth & Vose Co., 35 F.3d 939, 944 (4th Cir.1994). . Burger King, 471 U.S. at 475, 105 S.Ct. 2174 (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 299, 100 S.Ct. 559, 62 L.Ed.2d 490 (1987)). And, the exercise of in personam jurisdiction" }, { "docid": "1747913", "title": "", "text": "“even in those situations where it could plausibly be argued that a lesser standard would meet due process.” Robinson v. Egnor, 699 F.Supp. 1207, 1211 (E.D.Va.1988) (quoting Willis v. Semmes, Bowen & Semmes, 441 F.Supp. 1235, 1243 (E.D.Va.1977)); see also, Blue Ridge Bank v. Veribanc, 755 F.2d 371, 371 (4th Cir.1985). In other words, it is possible that a non-resident defendant’s contacts with Virginia could fulfill the dictates of due process, yet escape the literal grasp of Virginia’s long-arm statute. Put another way, Virginia’s long-arm statute provides a ceiling of procedural protections above the federal floor of constitutional due process. With respect to the second, constitutional step, “ ‘[t]he constitutional touchstone’ of the determination whether an exercise of personal jurisdiction comports with due process ‘remains whether the defendant purposefully established ‘minimum contacts’ in the forum state,”’ Asahi Metal Indus. v. Superior Court of Cal., 480 U.S. 102, 108-09, 107 S.Ct. 1026, 1030, 94 L.Ed.2d 92 (1987) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945)), “such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe, 326 U.S. at 316, 66 S.Ct. at 158 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 342-43, 85 L.Ed. 278 (1940)). This two step jhrisdictional analysis, applied here, compels the conclusion that the requirements of the Virginia long-arm statute for personal jurisdiction are not met. Put another way, the statute’s literal grasp simply does not reach Hafner in the circumstances at bar. Although DeSantis never directly specified which provision of Virginia’s long-arm statute applies in this action, only three of the statute’s subsections would seem to have any applicability here: § 8.01-328.1(A)(1), § 8.01.328.1(A)(3), and § 8.01-328.1(A)(4). An examination of these provisions discloses that none fits here. Under § 8.01-328.1(A)(1), the exercise of personal jurisdiction is proper only if the asserted cause of action stems from a non-resident defendant’s “[transacting any business in this Commonwealth.” Chedid v. Boardwalk Regency Corp., 756 F.Supp. 941, 943-44 (E.D.Va.1991). Although a single act by the" }, { "docid": "4320406", "title": "", "text": "federal court sitting in Virginia. We have previously found that the presence of other parties and issues in the state action not present in the federal declaratory judgment action is “particularly salient,” and we also find that to be the case here. See Centennial Life Ins. Co. v. Poston, 88 F.3d 255, 257 (4th Cir.1996). Indeed, if the district court heard the case without the other parties and without addressing Flagship’s state-law claims as counter-claims, then this could indeed cause “excessive entanglement” by resolving the dispute in a piecemeal and inefficient fashion. ■ IV. Given all this, we cannot conclude that the district court abused its discretion in deciding to decline to hear this declaratory judgment action if personal jurisdiction existed. Clear as day, considerations of “federalism, comity, and efficiency,” Penn-America Ins. Co., 368 F.3d at 412, counsel against running this action simultaneously with the New Jersey lawsuit. Accordingly, after careful consideration we conclude that the district court’s decision to dismiss is AFFIRMED. . Flagship is incorporated in both New Jersey and Florida. Atlantic Palace is a limited liability company whose citizenship is ultimately uncertain from the record because of its abbreviated presence in this suit. . This subsection provides jurisdiction over a person as to: a cause of action arising from the person's ... [clausing tortious injury in this Commonwealth by an act or omission outside the Commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this Commonwealth!.] Va.Code Ann. § 8.01-328.1(A)(4). . This subsection confers jurisdiction over a person as to “a cause of action arising from the person's ... [transacting any business in this Commonwealth.” Va.Code Ann. § 8.01-328.1(A)(1). .Specifically, the declaration.stated in relevant part that, \"FINOVA has renegotiated its loan agreements with Defendants and with Atlantic Palace. The renegotiated loan agreements enabled Defendants and with [sic] Atlantic Palace to prepay their respective loans, which has resulted in reduced fees to Wellington from FINOVA.” J.A. 162 (emphasis added). . However, ”[a] threshold prima facie finding that" }, { "docid": "1747917", "title": "", "text": "the Virginia long-arm statute. In any event, even if Hafher’s sale to DeSantis’ law firm could be considered a possible basis for jurisdiction, that transaction, by itself, does not suffice under Virginia’s long-arm statute. ' Numerous courts have held that a single shipment of goods to Virginia, without more, does not constitute the transacting of any business under § 8.01-328.1(A)(1). See, e.g., Processing Research, Inc. v. Larson, 686 F.Supp. 119, 122-123 n. 2 (E.D.Va.1988); Ajax Realty Corp. v. J.F. Zook, Inc., 493 F.2d 818, 821 n. 4 (4th Cir.1972), cert. denied, 411 U.S. 966, 93 S.Ct. 2148, 36 L.Ed.2d 687 (1973). The same result must obtain here. Hafiier took great pains to structure the transaction in a manner calculated to minimize its business contact with Virginia. Aside from Hafher’s national advertisement, Hafner made no purposeful effort to transact business in the forum state. In the circumstances, Hafiier merely responded to an inquiry from Crawford, a prospective buyer, by shipping the waist pack holster to Virginia, FOB Florida. This isolated transaction cannot amount to transacting business. Accordingly, § 8.01-328.1(A)(1) affords no basis here for the exercise of personal jurisdiction over Hafner. Under the next possibly applicable provision, § 8.01-328.1(A)(3), a court in Virginia may assert long-arm jurisdiction over a non-resident defendant if that party “caus[ed] tortious injury by an act or omission in this Commonwéalth.” This provision requires that an out-of-state defendant be physically present in Virginia when commit ting the act or omission giving rise to the tort at issue. See Alton v. Wang, 941 F.Supp. 66, 67 (W.D.Va.1996) (citing cases that construe New York’s similar long-arm statute provision and finding that defendant, who sent email messages and letters from Canada and China to plaintiff in Virginia, did not commit any acts while physically present in Virginia for purposes of jurisdiction under § 8.01-328.1(A)(3)). ' Next, DeSantis contends that Hafner committed an affirmative tort by repeatedly advertising the allegedly infringing waist pack holster in Shotgun News and that, as a consequence, Virginia’s long-arm statute reaches Hafner. This argument fails because Hafner was not present in Virginia when committing the allegedly" }, { "docid": "12760248", "title": "", "text": "involve a two-step inquiry. First, courts must ascertain whether a plaintiff has made a prima facie showing that Virginia’s long-arm statute reaches the nonresident defendant given the cause of action alleged and the nature of the defendant’s Virginia contacts. Second, a court must determine whether the exercise of personal jurisdiction in the circumstances is consistent with the Due Process Clause, that is, whether the long-arm statute’s reach in the circumstances exceeds its constitutional grasp. In that regard, it is settled that the language extending jurisdiction to the transaction of business in Virginia allows a court “to assert jurisdiction over nonresidents ... to the extent permissible under the due process clause.” Kolbe v. Chromodern Chair Co., 211 Va. 736, 740, 180 S.E.2d 664, 667 (1971). Nonetheless, it is possible that an entity’s contacts with Virginia may satisfy due process, and still not fall within a particular provision of the Long Arm Statute. It is therefore appropriate to begin with the statutory analysis. See TELCO Communications v. An Apple A Day, 977 F.Supp. 404, 405 (E.D.Va.1997) (citing DeSantis, 949 F.Supp. at 428). Plaintiffs rely on the “transacting business” provision of the Long Arm Statute, which subjects a nonresident defendant to personal jurisdiction as to any cause of action “arising from” that defendant’s transaction of business in Virginia. See Va.Code § 8 8.01-328.1(A)(1). As a preliminary matter, assuming eAsia transacted business in Virginia by registering the allegedly infringing domain names with NSI, the sole cause of action arising from that transaction of business is the ACPA claim. This is so because a claim of trademark infringement or dilution arises from the commercial use of a domain name that is similar or identical to a person’s trademark, and not from the mere registration of the domain name. Thus, for domain name disputes based on federal or common law trademark infringement or dilution, the relevant tortious act is the use of the domain name, and not the act of registration. The ACPA, however, provides a cause of action against a domain name registrant based on the bad faith registration of a domain name that is" }, { "docid": "12760247", "title": "", "text": "depends in part on the registrar’s meeting its obligations, and in part on the operation of the DNS, only a small portion of which falls within the domain name registrar’s control. It is against this technical and contractual background that plaintiffs seek to establish personal jurisdiction based on eAsia’s contracts with NSI. Ill When the exercise of personal jurisdiction is challenged pursuant to Rule 12(b)(2), Fed.R.Civ.P., the question “is one for the judge, with the burden on the plaintiff ultimately to prove the existence of a ground for jurisdiction by the preponderance of the evidence.” Combs v. Bakker, 886 F.2d 673, 676 (4th Cir.1989). To survive the jurisdictional challenge, a plaintiff need only make a prima facie showing of a sufficient jurisdictional basis on the basis of the complaint and supporting affidavits. See id. In considering a defendant’s challenge to personal jurisdiction, a court must construe all relevant allegations in the light most favorable to the plaintiff and draw the most favorable inferences for the existence of jurisdiction. See id. Resolution of personal jurisdiction challenges involve a two-step inquiry. First, courts must ascertain whether a plaintiff has made a prima facie showing that Virginia’s long-arm statute reaches the nonresident defendant given the cause of action alleged and the nature of the defendant’s Virginia contacts. Second, a court must determine whether the exercise of personal jurisdiction in the circumstances is consistent with the Due Process Clause, that is, whether the long-arm statute’s reach in the circumstances exceeds its constitutional grasp. In that regard, it is settled that the language extending jurisdiction to the transaction of business in Virginia allows a court “to assert jurisdiction over nonresidents ... to the extent permissible under the due process clause.” Kolbe v. Chromodern Chair Co., 211 Va. 736, 740, 180 S.E.2d 664, 667 (1971). Nonetheless, it is possible that an entity’s contacts with Virginia may satisfy due process, and still not fall within a particular provision of the Long Arm Statute. It is therefore appropriate to begin with the statutory analysis. See TELCO Communications v. An Apple A Day, 977 F.Supp. 404, 405 (E.D.Va.1997) (citing" }, { "docid": "4320392", "title": "", "text": "or taken improper payments from lenders. Wellington filed its initial complaint on August 13, 2003. It sought a declaratory judgment that no agency relationship existed between the parties and that it owed Flagship and Atlantic Palace no money that it had received from the lenders. A month later Wellington amended its complaint by adding a claim against Flagship for tortious interference with Wellington’s agreement with Liberty and by dropping Atlantic Palace to preserve complete diversity, which was the sole basis for subject-matter jurisdiction. Both complaints asserted personal jurisdiction because the action arose “from the transaction of business in this state and from the commission of torts outside this state causing injury in this state.” J.A. 12, 32. Between the filing of Wellington’s initial and amended complaints, Flagship and Atlantic Palace sued Wellington, Finova, and two of Wellington’s officers in New Jersey state court. Flagship and Atlantic Palace alleged, among other things, fraud, commercial bribery, violation of New Jersey racketeering law, breach of contract, breach of the implied covenant of good faith and fair dealing, and breach of fiduciary duty. The parties agree that the conduct underlying the two cases is identical. On April 30, 2004, Flagship filed motions to dismiss the Virginia case because of the parallel New Jersey suit and for lack of personal jurisdiction. In its brief opposing Flagship’s motion to dismiss for lack of personal jurisdiction, Wellington argued that personal jurisdiction existed only under Va.Code Ann. § 8.01-328.1(A)(4) (“subsection 4”), not § 8.01-328.1(A)(1) (“subsection l”). At the oral argument, however, Wellington changed course and argued both subsections 1 and 4 of Virginia’s long-arm statute. Only on August 18, 2004 — over three months after filing its opposition brief and the court’s deadline for reply briefs, after oral argument, and the day before the court issued its opinion — did Wellington put the subsection 1 argument to paper, in a “supplemental memorandum of law” that Wellington admits to us was untimely and unauthorized. Wellington acknowledged in both its May 14, 2004 brief opposing the motion to dismiss and at the August 13, 2004 oral argument on the motion" }, { "docid": "16728115", "title": "", "text": "F.2d 193, 195 (4th Cir.1976); Wolfe v. Richmond City Hospital Authority, 745 F.2d 904, 909 (4th Cir. 1984). The courts must determine, first, if there is statutory authority for the exercise of jurisdiction under the laws of ^ ^ ^ , , .. . „ the state and, second, if the exercise of . . ,. ... „ , , ... jurisdiction complies with federal constituj.. TT , tional standards of due process. Hardy, 531 F.2d at 195; Wolfe, 745 F.2d at 909. Blue Ridge first asserts that the district court has personal jurisdiction over Veribanc under the long arm statute of Virginia, Va.Code § 8.01-328.1(A)(3) and (4). Finding that personal jurisdiction exists under § (4), we need not discuss whether jurisdiction exists under § (3). Section 8.01-328.1(A)(4) states: A. A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action arising from the person’s: 4. Causing tortious injury in this Commonwealth by an act or omission outside this Commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this Commonwealth. Thus, the exercise of jurisdiction under this statute has two requirements: (1) a tortious injury in Virginia caused by an act or omission outside of Virginia; and (2) a relationship between the defendant and the Commonwealth which exists in any one of three ways which are specified in § (4). Although this statute has been extended to the utmost limits of due process, John G. Kolbe, Inc. v. Chromodern Chair Co., 211 Va. 736, 180 S.E.2d 664 (1971), for the district court to exercise personal jurisdiction over Veribanc, Blue Ridge must show that Veribanc’s activity fits these specific requirements of § 8.01-328.1(A)(4). The necessity of a plaintiff showing that a trial court has jurisdiction over an out-of-state defendant first through the long-arm stat-ute itself is explained in Willis v. Semmes, Bowen & Semmes, 441 F.Supp. 1235 (E.D. Va.1977): However, this depiction of the law’s purpose was derived directly" }, { "docid": "8236835", "title": "", "text": "1. Carefirst, 334 F.3d at 396; see also Stover v. O’Connell Assoc., Inc., 84 F.3d 132, 136 (4th Cir.1996). We turn first to state law. The relevant portion of Virginia’s long-arm statute provides, “A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action arising from the person’s ... [transacting any business in this Commonwealth.” Va.Code Ann. § 8.01-328.1(A)(1). The exercise of personal jurisdiction is proper, then, only if the asserted cause of action “aris[es] from” the non-resident defendant’s “[transacting business” in Virginia. § 8.01-328.1(A)(1); see also DeSantis v. Hafner Creations, Inc., 949 F.Supp. 419, 423-24 (E.D.Va.1996); Chedid v. Boardwalk Regency Corp., 756 F.Supp. 941, 943-44 (E.D.Va.1991). Because Virginia’s long-arm statute is intended to extend personal jurisdiction to the extent permissible under the due process clause, the statutory inquiry merges with the constitutional inquiry. Young v. New Haven Advocate, 315 F.3d 256, 261 (4th Cir.2002) (citing Stover, 84 F.3d at 135-36); see also English & Smith v. Metzger, 901 F.2d 36, 38 (4th Cir.1990); Peninsula Cruise, Inc. v. New River Yacht Sales, Inc., 257 Va. 315, 512 S.E.2d 560, 562 (1999). We turn next to the constitutional analysis. To satisfy the constitutional due process requirement, a defendant must have sufficient “minimum contacts” with the forum state such that “the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Wash., 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quotation and citation omitted). The minimum contacts test requires the plaintiff to show that the defendant “purposefully directed his activities at the residents of the forum” and that the plaintiffs cause of action “arise[s] out of’ those activities. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (citation and quotation omitted). This test is designed to ensure that the defendant is not “haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts.” Burger King, 471 U.S. at 475, 105 S.Ct. 2174 (quotations and citations omitted). It protects a" }, { "docid": "1747912", "title": "", "text": "or the Constitution’s due process requirements. Desantis counters that Hafner’s contacts with Virginia authorize personal jurisdiction. It is well-established that a federal court may exercise personal jurisdiction over a non-resident defendant only if: (i) the applicable state long-arm statute confers jurisdiction; and (ii) the assertion of that jurisdiction is consistent with constitutional due process. Thus, personal jurisdiction analysis calls for a two step inquiry. The first step is to determine whether Virginia’s long-arm statute reaches the non-resident defendant given the cause of action alleged and the nature of the defendant’s Virginia contacts. The second step requires determining whether the exercise of personal jurisdiction in the circumstances is consistent with due process, that is, whether the long-arm statute’s reach in the situation exceeds ■■ its constitutional grasp. . ■ Several subsidiary principles guide courts in this two step process. With respect to the first step, it is well-settled that the provisions of § 8.01-328.1 extend personal jurisdiction to the outermost boundaries of due process. But it is equally well-settled that Virginia’s long-arm statute must be satisfied “even in those situations where it could plausibly be argued that a lesser standard would meet due process.” Robinson v. Egnor, 699 F.Supp. 1207, 1211 (E.D.Va.1988) (quoting Willis v. Semmes, Bowen & Semmes, 441 F.Supp. 1235, 1243 (E.D.Va.1977)); see also, Blue Ridge Bank v. Veribanc, 755 F.2d 371, 371 (4th Cir.1985). In other words, it is possible that a non-resident defendant’s contacts with Virginia could fulfill the dictates of due process, yet escape the literal grasp of Virginia’s long-arm statute. Put another way, Virginia’s long-arm statute provides a ceiling of procedural protections above the federal floor of constitutional due process. With respect to the second, constitutional step, “ ‘[t]he constitutional touchstone’ of the determination whether an exercise of personal jurisdiction comports with due process ‘remains whether the defendant purposefully established ‘minimum contacts’ in the forum state,”’ Asahi Metal Indus. v. Superior Court of Cal., 480 U.S. 102, 108-09, 107 S.Ct. 1026, 1030, 94 L.Ed.2d 92 (1987) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945)), “such" }, { "docid": "15347657", "title": "", "text": "their registration applications in order to avoid identification and service of process by the mark owner.” Id. In this regard, the in rem provision gives the mark owner a cause of action in those cases, where, after due diligence, a mark owner is unable to proceed against the domain name registrant because the registrant has provided false contact information and is otherwise not to be found, or where a court is unable to assert personal jurisdiction over such person, provided the mark owner can show that the domain name itself violates federal trademark law. Id. (emphasis added); see also id. (\"The in rem provisions of the Act accordingly contemplate that a trademark holder may initiate in rem proceedings in cases where domain name registrants are not subject to personal jurisdiction or cannot reasonably be found by the trademark holder.”). . In this regard, Alitalia bears the burden of disproving jurisdiction by a preponderance of the evidence. See Heathmount, 106 F.Supp.2d at 862-63 (holding that “[u]nder § 1125(d)(2), a plaintiff must ‘disprove’ the presence of personal jurisdiction in order to proceed in rem,\" and \"bear[s] the burden to demonstrate some indicia of due diligence in trying to establish personal jurisdiction over an individual who has been identified as a potential defendant but is not subject to jurisdiction.”). . Because the Virginia long-arm statute extends personal jurisdiction to the fullest extent permitted by due process, the first inquiry is often merged into the second. See Kolbe v. Chromodern Chair Co., 211 Va. 736, 180 S.E.2d 664, 667 (1971); English & Smith v. Metzger, 901 F.2d 36, 38 (4th Cir.1990); America Online, 106 F.Supp.2d at 854. It is possible, however, for the contacts of a nonresident defendant to satisfy due process but not the requirements of the Virginia long-arm statute. See, e.g., TELCO Communications v. An Apple A Day, 977 F.Supp. 404, (E.D.Va.1997); DeSantis, 949 F.Supp. at 423. Accordingly, consideration of the applicability of the Virginia long-arm statute is necessary. . See TELCO, 977 F.Supp. at 407 (holding that a defendant who \"conduct[s] ... advertising and soliciting over the Internet, which could be" }, { "docid": "4320408", "title": "", "text": "personal jurisdiction is proper does not finally settle . the issue; plaintiff must eventually prove the existence of personal jurisdiction by a preponderance of the evidence, either at trial or at a pretrial eviden-tiary hearing.” Production Group Int’l v. Goldman, 337 F.Supp.2d 788, 793 n. 2 (E.D.Va.2004) (citation omitted). . It is nonetheless still possible \" 'for the contacts of a non-resident defendant to satisfy due process but not meet the specific grasp of a Virginia long-arm statute provision.' \" Bochan v. LaFontaine, 68 F.Supp.2d 692, 698 (E.D.Va.1999) (quoting Telco Communications v. An Apple 4 Day, 977 F.Supp. 404, 405 (E.D.Va.1997)); see also Blue Ridge Bank v. Veribanc, Inc., 755 F.2d 371, 373 (4th Cir.1985). Virginia’s specific grants of jurisdiction are not meaningless. Moreover, plaintiffs who assert jurisdiction under only one provision of the long-arm statute cannot obtain jurisdiction under an unclaimed provision. . See, e.g., Skipper v. Giant Food, Inc., 68 Fed.Appx. 393, 396 n. 3 (4th Cir.2003) (\"After all papers were filed in the district court and the parties had conducted oral argument, plaintiffs’ counsel filed a supplemental memorandum. ... Finding that the memorandum had not been filed in a timely manner, the district court declined to address ... [it] and we decline to do so as well.”); O.V. Foy v. Norfolk & Western R. Co., 377 F.2d 243, 246 (4th Cir.1967) (where plaintiff offered no timely response to motion for summary judgment and no explanation for that failure, district court did not abuse its discretion in granting summary judgment for defendant; district court's decision to deny late motion was not an abuse of discretion). . At oral argument Wellington stated that \"[a]nd now we’re seeking, we will be seeking, Judge, to amend it to encompass the claim of tortious interference with a different bank that they’ve interfered with.” J.A. 257. Yet as the district court held, Wellington never filed this promised motion to amend \"and given the absence of such a motion the Court cannot find that [] Wellington's hypothetical proposed amendment is proper or that such an amendment would create jurisdiction.” J.A. 284. . Wellington argues" }, { "docid": "22954000", "title": "", "text": "meetings in Maryland for its district managers. Also, it contracted in the years preceding the suits with a Maryland firm for some of its drug research. Finally, it made certain purchases in Maryland in the years preceding the suit, but these constituted less than one percent of its annual purchases. The Maryland district court granted Searle’s motion to dismiss all of these cases for lack of personal jurisdiction. Plaintiffs then moved under Fed.R.Civ.P. 59(e) to amend the district court’s judgment in order to transfer their cases, under 28 U.S.C. § 1406(a), to the Northern District of Illinois, where Searle has its principal place of business, instead of dismissing the cases. The district court denied this motion, finding that, because plaintiffs’ attorneys could have foreseen that the district court lacked personal jurisdiction over plaintiffs’ actions when they filed them, it was not now in the interest of justice to transfer them. II Plaintiffs contend that the district court erred in dismissing their cases for lack of personal jurisdiction. We review the district court’s ruling de novo and reject this contention. A federal court sitting in diversity has personal jurisdiction over a non-resident defendant if (1) an applicable state long-arm statute confers jurisdiction and (2) the assertion of that jurisdiction is consistent with constitutional due process. Blue Ridge Bank v. Veribanc, Inc., 755 F.2d 371, 373 (4th Cir.1985). Maryland’s long-arm statute permits jurisdiction to the limits permitted by due process. Geelhoed v. Jensen, 277 Md. 220, 352 A.2d 818, 821 (Md.1976). Thus, as the parties here agree, the Maryland district court had personal jurisdiction over Searle if such jurisdiction would not have violated due process. Due process requires that in order to subject a defendant to personal jurisdiction, the defendant must have “certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (quotation omitted). When, as in the case at bar, a suit does not arise out of the defendant’s" }, { "docid": "12601979", "title": "", "text": "the parties’ pleadings, moving papers, and supporting affidavits, with conflicts resolved in favor of plaintiff as the non-movant. See My-lan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 59-60 (4th Cir.1993); Precept Med. Prods, v. Klus, 282 F.Supp.2d 381, 384 (W.D.N.C.2003). . A threshold prima facie finding that personal jurisdiction is proper does not finally settle the issue; plaintiff must eventually prove the existence of personal jurisdiction by a preponderance of the evidence, either at trial or at a pretrial evidentiary hearing. Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981). . Plaintiff initially argued that subsection (A)(4) of the long-arm statute, which allows for personal jurisdiction over a defendant \"causing tortious injury” in Virginia (if certain other conditions are met), provided an alternative basis for personal jurisdiction here. See Va.Code § 8.01-328.1(A)(4) (2004). At oral argument, however, plaintiff conceded that its failure to allege a tortious cause of action in its complaint precludes a finding of personal.jurisdiction on this basis. .Compare English & Smith, 901 F.2d at 39 (finding jurisdiction where contract sued upon arose from defendant’s solicitation of plaintiff while plaintiff was physically present in Virginia), with Processing Research, Inc. v. Larson, 686 F.Supp. 119, 122 (E.D.Va.1988) (finding no jurisdiction where contract sued upon arose from defendant's placement of an advertisement in a national periodical). . In City of Virginia Beach v. Roanoke River Basin Ass’n, 776 F.2d 484, 487 (4th Cir.1985), the Fourth Circuit did not specifically construe the phrase \"arising from,” but stated, \"[i]n order for a cause of action to arise from business transacted in Virginia, the activities that support the jurisdictional claim must coincide with those that form the basis of the plaintiff's substantive claim.\" Roanoke River, however, involved a Virginia municipality’s challenge to the validity of pipeline permits issued to the State of North Carolina, and thus provides little guidance on the meaning of \"arising from” in the context of this case. . For a listing of all the factors relevant to the § 1404(a) calculus and the cases discussing these factors, see Questions as to Convenience and Justice" }, { "docid": "4320407", "title": "", "text": "is a limited liability company whose citizenship is ultimately uncertain from the record because of its abbreviated presence in this suit. . This subsection provides jurisdiction over a person as to: a cause of action arising from the person's ... [clausing tortious injury in this Commonwealth by an act or omission outside the Commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this Commonwealth!.] Va.Code Ann. § 8.01-328.1(A)(4). . This subsection confers jurisdiction over a person as to “a cause of action arising from the person's ... [transacting any business in this Commonwealth.” Va.Code Ann. § 8.01-328.1(A)(1). .Specifically, the declaration.stated in relevant part that, \"FINOVA has renegotiated its loan agreements with Defendants and with Atlantic Palace. The renegotiated loan agreements enabled Defendants and with [sic] Atlantic Palace to prepay their respective loans, which has resulted in reduced fees to Wellington from FINOVA.” J.A. 162 (emphasis added). . However, ”[a] threshold prima facie finding that personal jurisdiction is proper does not finally settle . the issue; plaintiff must eventually prove the existence of personal jurisdiction by a preponderance of the evidence, either at trial or at a pretrial eviden-tiary hearing.” Production Group Int’l v. Goldman, 337 F.Supp.2d 788, 793 n. 2 (E.D.Va.2004) (citation omitted). . It is nonetheless still possible \" 'for the contacts of a non-resident defendant to satisfy due process but not meet the specific grasp of a Virginia long-arm statute provision.' \" Bochan v. LaFontaine, 68 F.Supp.2d 692, 698 (E.D.Va.1999) (quoting Telco Communications v. An Apple 4 Day, 977 F.Supp. 404, 405 (E.D.Va.1997)); see also Blue Ridge Bank v. Veribanc, Inc., 755 F.2d 371, 373 (4th Cir.1985). Virginia’s specific grants of jurisdiction are not meaningless. Moreover, plaintiffs who assert jurisdiction under only one provision of the long-arm statute cannot obtain jurisdiction under an unclaimed provision. . See, e.g., Skipper v. Giant Food, Inc., 68 Fed.Appx. 393, 396 n. 3 (4th Cir.2003) (\"After all papers were filed in the district court and the parties had conducted oral argument," }, { "docid": "8236834", "title": "", "text": "only the district court’s holding that it lacked specific jurisdiction over the defendants. II. We review de novo a district court’s dismissal for lack of personal jurisdiction, although we review for clear error any underlying factual findings. Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc. (“Carefirst”), 334 F.3d 390, 396 (4th Cir.2003). Where, as here, the district court addresses the question of personal jurisdiction on the basis of motion papers, supporting legal memoranda, and the allegations in the complaint, the plaintiff bears the burden making a prima facie showing of a sufficient jurisdictional basis to survive the jurisdictional challenge. Combs v. Bakker, 886 F.2d 673, 676 (4th Cir.1989). III. In considering CEC’s assertion of personal jurisdiction, we first set forth the applicable law. A federal district court may only exercise personal jurisdiction over a foreign corporation if such jurisdiction is authorized by the long-arm statute of the state in which it sits and application of the long-arm statute is consistent with the due process clause of the Fourteenth Amendment, U.S. Const. amend. XIV § 1. Carefirst, 334 F.3d at 396; see also Stover v. O’Connell Assoc., Inc., 84 F.3d 132, 136 (4th Cir.1996). We turn first to state law. The relevant portion of Virginia’s long-arm statute provides, “A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action arising from the person’s ... [transacting any business in this Commonwealth.” Va.Code Ann. § 8.01-328.1(A)(1). The exercise of personal jurisdiction is proper, then, only if the asserted cause of action “aris[es] from” the non-resident defendant’s “[transacting business” in Virginia. § 8.01-328.1(A)(1); see also DeSantis v. Hafner Creations, Inc., 949 F.Supp. 419, 423-24 (E.D.Va.1996); Chedid v. Boardwalk Regency Corp., 756 F.Supp. 941, 943-44 (E.D.Va.1991). Because Virginia’s long-arm statute is intended to extend personal jurisdiction to the extent permissible under the due process clause, the statutory inquiry merges with the constitutional inquiry. Young v. New Haven Advocate, 315 F.3d 256, 261 (4th Cir.2002) (citing Stover, 84 F.3d at 135-36); see also English & Smith v. Metzger, 901 F.2d 36, 38 (4th Cir.1990);" }, { "docid": "1728586", "title": "", "text": "pleadings, affidavits, and documents in the light most favorable to the plaintiff. E.g., Combs, 886 F.2d at 676; Abel, 798 F.Supp. at 324. Plaintiffs first claim that non-resident defendant Hunter-Douglas is subject to personal jurisdiction under Virginia’s long-arm statute, which provides in relevant part: A. A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action arising from the person’s: 1. Transacting any business in this Commonwealth; [or] 2. Contracting to supply services or things in this Commonwealth. B. When the jurisdiction over a person is based solely upon this section, only a cause of action arising from acts enumerated in this section may be asserted against him.... 2 Va.Code Ann. § 8.01-328.1 (Michie 1992) (emphasis added). If the long-arm statute applies, the court must then determine whether asserting personal jurisdiction over Hunter-Douglas thereunder comports with the Due Process Clause of the Fourteenth Amendment. See, e.g., City of Virginia Beach, 776 F.2d at 487; Peanut Corp. of Am. v. Hollywood Brands, Inc., 696 F.2d 311, 313 (4th Cir.1982); Chedid v. Boardwalk Regency Corp., 756 F.Supp. 941, 942 (E.D.Va.1991). Plaintiffs claim that Bloch’s sale of two Hunter-Douglas blinds, as well as Hunter-Douglas’ shipment of products into Virginia, mean that Hunter-Douglas is “transacting business” in Virginia. Plaintiffs also claim that Hunter-Douglas’ alleged threat of continued sales of products that fall within the claims of the License Agreement is an example of “contractual wrongdoing” subjecting Hunter-Douglas to suit in Virginia. By its terms, the long-arm statute plainly confers jurisdiction only over claims that “arise from” a defendant’s acts in Virginia. E.g., City of Virginia Beach, 776 F.2d at 487; Chedid, 756 F.Supp. at 943; Eastern Scientific Mktg., Inc. v. Tekna-Seal, Inc., 696 F.Supp. 173, 176 (E.D.Va.1988). Exercising jurisdiction over claims arising out of a defendant’s forum-affiliating contacts generally is referred to as “specific jurisdiction.” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 & n. 8, 104 S.Ct. 1868, 1872 & n. 8, 80 L.Ed.2d 404 (1984). Such long-arm jurisdiction can be based on a single forum-affiliating act by the" }, { "docid": "15347636", "title": "", "text": "personam jurisdiction over JPR, in which event Alitalia may proceed only in rem against the domain name <casinoali-talia.com> and Alitalia will be entitled to summary judgment if the record discloses no triable issue of fact. Thus, the next step in the analysis is to address whether JPR is subject to jurisdiction in Virginia pursuant to the Commonwealth’s long-arm statute. See Va.Code § 8.01-328.1. III. It is well-settled that the resolution of a challenge to in personam jurisdiction involves a two-step inquiry. See, e.g., Ellicott Mach. Corp. v. John Holland Party, Ltd., 995 F.2d 474, 477 (4th Cir.1993). First, a court must determine whether the particular facts and circumstances of the case fall within the reach of Virginia’s long-arm statute. See Va.Code. § 8.01-328.1; Bochan v. LaFontaine, 68 F.Supp.2d 692, 697-98 (E.D.Va.1999); DeSantis v. Hafner Creations, Inc., 949 F.Supp. 419, 422 (E.D.Va.1996). Second, a court must decide whether the long-arm statute’s reach in the case exceeds its constitutional grasp — namely, whether the exercise of personal jurisdiction in the matter is consistent with traditional notions of fair play and substantial justice under the Due Process Clause. See Ellicott Mach. Corp., 995 F.2d at 477; DeSantis, 949 F.Supp. at 422-23. And, although at this threshold stage the plaintiff “need only make a prima facie showing of a sufficient jurisdictional basis on the basis of the complaint and supporting affidavits,” the plaintiff ultimately bears the burden of proving the existence of personal jurisdiction by a preponderance of the evidence. America Online, Inc. v. Huang, 106 F.Supp.2d 848, 853 (E.D.Va.2000); see Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir.1993); Combs v. Bakker, 886 F.2d 673, 676 (4th Cir.1989). These principles, applied here, compel the conclusion that Section 8.01-328.1(A)(4) of the Virginia long-arm statute reaches JPR’s contacts with Virginia and that this reach is constitutional. Section 8.01-328.1(A)(4) provides for in personam jurisdiction over a person (i) who causes tortious injury (ii) in Virginia (iii) by an act or omission outside of Virginia if that person (a) regularly does or solicits business in Virginia, (b) engages in any other persistent course of" }, { "docid": "3798824", "title": "", "text": "by failing to maintain its payments. Following the alleged breach, Choice gave Madison notice of its intent to terminate the agreement in February 1998. Choice instituted this action thereafter. (ii) Once a defendant raises a Rule 12(b)(2) defense, the plaintiff bears the burden of proving that the court can exercise personal jurisdiction over the defendant, Nichols v. G.D. Searle & Co., 783 F.Supp. 233, 237 (D.Md.1992), aff'd, 991 F.2d 1195 (4th Cir.1993), by a preponderance of the evidence. Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 59-60 (4th Cir.1993); Cape v. von Maur, 932 F.Supp. 124, 125 (D.Md.1996). Plaintiff must show both that Maryland’s Long-Arm Statute confers jurisdiction and that the exercise of jurisdiction does not offend due process considerations. Blue Ridge Bank v. Veribanc, Inc., 755 F.2d 371, 373 (4th Cir.1985). In recent years, Maryland’s appellate courts and the United States Court of Appeals for the Fourth Circuit have shown a willingness to collapse those two inquiries into a single analysis, since the Maryland Long-Arm Statute is to be interpreted as extending to constitutional limits. See Camelback Ski Corp. v. Behning, 307 Md. 270, 274, 513 A.2d 874 (1986), vacated and remanded, 480 U.S. 901, 107 S.Ct. 1341, 94 L.Ed.2d 512 (1987), opinion on remand, 312 Md. 330, 539 A.2d 1107, cert. denied, 488 U.S. 849, 109 S.Ct. 130, 102 L.Ed.2d 103 (1988); Stover v. O’Connell Assoc., Inc., 84 F.3d 132, 135-36 & n* (4th Cir.), cert. denied, — U.S. —, 117 S.Ct. 437, 136 L.Ed.2d 334 (1996) ; cf. ESAB Group, Inc. v. Centricut, Inc., 126 F.3d 617, 623 (4th Cir.1997) (construing South Carolina Long-Arm Statute), cert. denied, — U.S. —, 118 S.Ct. 1364, 140 L.Ed.2d 513 (1998). In assessing the sufficiency of a defendant’s contacts with the forum state, the “constitutional touchstone” is whether the contacts were “purposefully established” by the defendant such that he “will not be haled into a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-75, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (citations omitted). The Supreme Court has drawn a" } ]

[ { "docid": "5630337", "title": "", "text": "explained that the CSRA provides the MSPB exclusive jurisdiction to review federal employee disputes within its terms. The court further reasoned: “[T]he comprehensive CSRA scheme includes claims for back pay.” Worthington, 41 Fed. Cl. at 184. Therefore, the court determined the MSPB-not the Court of Federal Claims-has exclusive authority to hear Worthington’s claim. Wor-thington appeals. He agrees that, if the MSPB has exclusive jurisdiction over his claim, the Court of Federal Claims lacks jurisdiction. He contends, however, that his claim falls outside the scope of the CSRA and that the MSPB does not have jurisdiction. Accordingly, he continues, the CSRA does not remove from the Court of Federal Claims jurisdiction otherwise granted by the Tucker Act. II. As an initial matter, this court notes that Worthington’s claim fits within the terms of the Tucker Act. That Act gives the Court of Federal Claims jurisdiction over claims against the United States founded upon, inter alia, an Act of Congress. See 28 U.S.C. § 1491(a)(1) (1994). To fall within the Tucker Act’s jurisdictional grant, a claim must invoke a statute that mandates the payment of money damages. The Back Pay Act is such a “money-mandating” statute when based on violations of statutes or regulations covered by the Tucker Act. See United States v. Connolly, 716 F.2d 882, 887 (Fed.Cir.1983). Worthington’s Back Pay Act claim founded on the underlying violation of the Federal Employees Flexible and Compressed Work Schedules Act satisfies the “Act of Congress” prong of the Tucker Act. This, however, does not end the inquiry. The Supreme Court held in United States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988), that the enactment of the CSRA operated to deprive a Tucker Act court of jurisdiction it would otherwise have over certain actions. This court must determine whether this is such an action. In Fausto, the Supreme Court addressed the jurisdiction of the Claims Court (now, the Court of Federal Claims) in the context of the Back Pay Act and the CSRA: [W]e find that under the comprehensive and integrated review scheme of the CSRA, the Claims Court" } ]

[ { "docid": "19275225", "title": "", "text": "under 5 U.S.C. § 7701, as part of the “integrated statutory scheme set up by Congress to protect civil servants.” United States v. Fausto, 484 U.S. 439, 444-51, 453, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988) (holding that Civil Service Reform Act precluded review in the Court of Federal Claims of the underlying personnel decision giving rise to the claim for back pay). Nothing we say today suggests that the Board has jurisdiction to review controversies that are committed by statute to other tribunals. CONCLUSION For these \"reasons we conclude that the Board had jurisdiction; that the Court of Appeals for Veterans Claims had jurisdiction; and that a writ of mandamus should issue to direct the Board to decide the matter. Accordingly, the decision of the Court of Appeals for Veterans Claims is REVERSED AND REMANDED. COSTS No costs. . The exceptions set forth in 38 U.S.C. § 511(b) are: (1) matters subject to 38 U.S.C. § 502 (Federal Circuit jurisdiction over Administrative Procedure Act review of VA rule-making); (2) matters covered by 38 U.S.C. §§ 1975 and 1984 (jurisdiction of federal district courts over suits on Veterans’ Group Life Insurance, National Service Life Insurance and U.S. Government life insurance); (3) matters arising under chapter 37 of title 38 (involving VA housing and small business loans); and (4) matters arising under chapter 72 of title 38, (covering the appeals process to the Board, the Court of Appeals for Veterans Claims, and, ultimately, this court and the Supreme Court). . Section 5904, titled \"Recognition of agents and attorneys generally,” reads in its entirety: (a) The Secretary may recognize any individual as an agent or attorney for the preparation, presentation, and prosecution of claims under laws administered by the Secretary. The Secretary may require that individuals, before being recognized under this section, show that they are of good moral character and in good repute, are qualified to render claimants valuable service, and otherwise are competent to assist claimants in presenting claims. (b) The Secretary, after notice and opportunity for a hearing, may suspend or exclude from further practice before the Department any" }, { "docid": "19296269", "title": "", "text": "Tucker Act (“Little Tucker”), the Postal Reorganization Act (“PRA”), and the Rehabilitation Act. However, it is clear that Mills must first exhaust available administrative remedies afforded him under the Civil Service Reform Act (“CSRA”) , and/or the applicable collective bargaining agreement (“CBA”) prior to bringing an action in this Court. A. Civil Service Reform Act Congress enacted the CSRA to replace the inconsistent procedures for administrative and judicial review of adverse employment actions against federal employees. See United States v. Fausto, 484 U.S. 439, 444-45, 108 S.Ct. 668, 672-73, 98 L.Ed.2d 830 (1988) (citing S.Rep. No. 95-969, p. 3 (1978)); Lindahl v. Office of Personnel Management, 470 U.S. 768, 773-74, 105 S.Ct. 1620, 1624-25, 84 L.Ed.2d 674 (1985). Chapter 75 of the CSRA overhauled the traditional civil service system and created a detailed scheme for review of personnel actions taken by federal agencies. Id. The CSRA created a series of procedural devices, including an appeal to the Merit System Protection Board (“MSPB”), for federal employees affected by certain adverse personnel actions, including removal. 5 U.S.C. §§ 7512, 7513(d). Congress created the MSPB to provide an initial administrative review of employment action before any judicial remedy may be sought. Courts have recognized that the CSRA creates remedies by which covered federal employees may seek redress for improper employment actions. See Bush v. Lucas, 462 U.S. 367, 385, 103 S.Ct. 2404, 2414-15, 76 L.Ed.2d 648 (1983); Roth v. United States, 952 F.2d 611, 614 (1st Cir.1991); Montplaisir v. Leighton, 875 F.2d 1, 3 (1st Cir.1989). Indeed, the Supreme Court has held that the CSRA’s comprehensive scheme may in some cases preclude entirely a judicial remedy. See Fausto, 484 U.S. at 448-49, 108 S.Ct. at 674-75. In Fausto, for example, the plaintiff was a non-preference member of the Federal Fish and Wildlife Service who had been suspended without pay for thirty days. As a non-preference employee, he had no right to appeal an adverse employment action to the MSPB. He thus challenged his suspension in the Claims Court, seeking back pay under the Back Pay Act, 5 U.S.C. § 5596, and the Tucker" }, { "docid": "19275224", "title": "", "text": "we noted in Hanlin, with respect to section 511(a) itself, “when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” Hanlin, 214 F.3d at 1321 (quoting Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974)). Just as we held that section 511(a) cannot be read to preclude Tucker Act jurisdiction, section 511(a) cannot be read to preclude jurisdiction in other tribunals when that jurisdiction is specifically conferred by Congress. Id. at 1322. In the case of contract and employment disputes, these other review mechanisms have been held to be exclusive. Contractor appeals may be pursued exclusively in the Court of Federal Claims or the appropriate agency board of contract appeals. England v. Sherman R. Smoot Corp., 388 F.3d 844, 852 (Fed.Cir.2004) (citing the Contract Disputes Act, 41 U.S.C. §§ 606 and 609(a)). Employment disputes under the Civil Service Reform Act are exclusively appealable, if at all, to the Merit Systems Protection Board, under 5 U.S.C. § 7701, as part of the “integrated statutory scheme set up by Congress to protect civil servants.” United States v. Fausto, 484 U.S. 439, 444-51, 453, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988) (holding that Civil Service Reform Act precluded review in the Court of Federal Claims of the underlying personnel decision giving rise to the claim for back pay). Nothing we say today suggests that the Board has jurisdiction to review controversies that are committed by statute to other tribunals. CONCLUSION For these \"reasons we conclude that the Board had jurisdiction; that the Court of Appeals for Veterans Claims had jurisdiction; and that a writ of mandamus should issue to direct the Board to decide the matter. Accordingly, the decision of the Court of Appeals for Veterans Claims is REVERSED AND REMANDED. COSTS No costs. . The exceptions set forth in 38 U.S.C. § 511(b) are: (1) matters subject to 38 U.S.C. § 502 (Federal Circuit jurisdiction over Administrative Procedure Act review of VA rule-making); (2) matters covered by 38 U.S.C." }, { "docid": "5630336", "title": "", "text": "the Court of Federal Claims seeking compensation under the Back Pay Act, 5 U.S.C. § 5596 (1994), for the time he worked the compressed work schedule. That Act reads, in relevant part: (b)(1) An employee of an agency who, on the basis of a timely appeal or an administrative determination ... is found by an appropriate authority under applicable law, rule, regulation, or collective bargaining agreement to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials of the employee [is entitled to receive the pay he would have received if the personnel action had not occurred]. 5 U.S.C. § 5596(b)(1) (emphasis added). Citing the April 2, 1990 letter, Mr. Worthington claims that the Forest Service, as an “appropriate authority,” has determined that he has been affected by an “unwarranted” personnel action. Thus, he argues, the Back Pay Act entitles him to compensation. The Court of Federal Claims dismissed the claim for lack of jurisdiction. The court explained that the CSRA provides the MSPB exclusive jurisdiction to review federal employee disputes within its terms. The court further reasoned: “[T]he comprehensive CSRA scheme includes claims for back pay.” Worthington, 41 Fed. Cl. at 184. Therefore, the court determined the MSPB-not the Court of Federal Claims-has exclusive authority to hear Worthington’s claim. Wor-thington appeals. He agrees that, if the MSPB has exclusive jurisdiction over his claim, the Court of Federal Claims lacks jurisdiction. He contends, however, that his claim falls outside the scope of the CSRA and that the MSPB does not have jurisdiction. Accordingly, he continues, the CSRA does not remove from the Court of Federal Claims jurisdiction otherwise granted by the Tucker Act. II. As an initial matter, this court notes that Worthington’s claim fits within the terms of the Tucker Act. That Act gives the Court of Federal Claims jurisdiction over claims against the United States founded upon, inter alia, an Act of Congress. See 28 U.S.C. § 1491(a)(1) (1994). To fall within the Tucker Act’s jurisdictional grant, a claim must" }, { "docid": "6954529", "title": "", "text": "requested this ancillary relief. However, he has also pled a monetary claim that satisfies the jurisdictional requirements of the Tucker Act. Even were the clearing of his name his primary motivation, he can not be barred from access to the Court of Federal Claims upon stating a claim for monetary damages and ancillary relief that includes correcting his military records. For this theory the government relies on Fiorentino v. United States, 221 Ct.Cl. 545, 607 F.2d 963 (1979), wherein the Court of Claims held that an employee in the excepted service who was removable at will, with no right of judicial review under the Civil Service Reform Act, had no basis under the Tucker Act on which to seek back pay, rein statement, or the cleansing of his employment records. The court held that even if Mr. Fiorentino were maligned by derogatory information in his employment file, in the absence of a money-mandating statute his only remedy was an action to cleanse the file. Such an action, standing alone, could not be brought in the Court of Claims. However, the law governing the civilian employee at will in the excepted service does not govern other federal employees who may have rights controlled by other laws, or decide the court’s jurisdiction under other laws. See United States v. Fausto, 484 U.S. 489, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988). The argument that Mr. Holley must be excluded from the Court of Federal Claims because he also seeks to clear his name is without substance. C The government further argues that even if there should be Tucker Act jurisdiction of the issue of wrongful military discharge, the Court of Federal Claims did not have jurisdiction to consider Mr. Holley’s argument that he was entitled to a hearing before a board of inquiry as a matter of constitutional due process. Claimants in the Court of Federal Claims have the right to raise issues based on asserted procedural violations, whether violative of the Constitution or of statute or regulation, to support their claims for monetary relief. As we have discussed, the Court of Federal" }, { "docid": "17732908", "title": "", "text": "not expressly prohibit such action and the court independently is vested with a basis for jurisdiction. Worthington v. United States, 168 F.3d 24, 26 (Fed.Cir.1999); Bosco v. United States, 976 F.2d 710, 713-14 (Fed.Cir.1992). The Court of Federal Claims has jurisdiction over claims brought under the Back Pay Act. Kanemoto v. Reno, 41 F.3d 641, 646 (Fed.Cir.1994). However, the CSRA expressly mandates that in cases involving removal, National Guard technicians are not employees entitled to appeal removal decisions to the Merit Systems Protection Board. 5 U.S.C. § 7511(b)(5) (“This subchapter does not apply to an employee ... who is described in section 8337(h)(1), relating to technicians in the National Guard____”). The Supreme Court in United States v. Fausto, 484 U.S. 439, 447-48, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988), held that, as the CSRA thereby expresses congressional intent not to allow appeal by certain categories of employees, those employees also are precluded from seeking any judicial review of removal decisions. Therefore, the Court of Federal Claims cannot review the underlying dismissal and lacks jurisdiction over any claim brought by a National Guard technician under the Back Pay Act. Booth, 990 F.2d at 619-20; Leistiko, 134 F.3d at 820 (court lacked jurisdiction over plaintiffs claim for back pay based on argument that adjutant general erred in his determination that plaintiff failed to maintain flying status). Leistiko, a case on point, involved a National Guardsman, employed as a civilian supervisory aircraft pilot pursuant to the NGTA, who sought back pay after he was dismissed for failure to maintain flying status. The Sixth Circuit determined that, because failure to maintain flying status necessitates removal under TPR 715, the CSRA’s removal subehapter was applicable. 134 F.3d at 819-20. That subchapter, however, expressly precluded appeals by National Guard technicians, so plaintiffs claim for back pay was not subject to judicial review, even assuming that the adjutant general had misapplied TPR 715. Id. Nothing in this case necessitates a different result. In an exercise of diligence and thoughtfulness that could put many practicing attorneys to shame, plaintiff challenges the result in Leistiko, reasoning that, whereas under" }, { "docid": "5630338", "title": "", "text": "invoke a statute that mandates the payment of money damages. The Back Pay Act is such a “money-mandating” statute when based on violations of statutes or regulations covered by the Tucker Act. See United States v. Connolly, 716 F.2d 882, 887 (Fed.Cir.1983). Worthington’s Back Pay Act claim founded on the underlying violation of the Federal Employees Flexible and Compressed Work Schedules Act satisfies the “Act of Congress” prong of the Tucker Act. This, however, does not end the inquiry. The Supreme Court held in United States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988), that the enactment of the CSRA operated to deprive a Tucker Act court of jurisdiction it would otherwise have over certain actions. This court must determine whether this is such an action. In Fausto, the Supreme Court addressed the jurisdiction of the Claims Court (now, the Court of Federal Claims) in the context of the Back Pay Act and the CSRA: [W]e find that under the comprehensive and integrated review scheme of the CSRA, the Claims Court (and any other court relying on Tucker Act jurisdiction) is not an “appropriate authority” [under the Back Pay Act] to review an agency’s personnel determination.... Such authority would include the agency itself, or the MSPB or the Federal Circuit where those entities have the authority to review the agency’s determination. 484 U.S. at 454, 108 S.Ct. 668. This court has noted that Fausto deprives the Court of Federal Claims of jurisdiction over personnel actions covered by the CSRA. See Romero v. United States, 38 F.3d 1204, 1211 (Fed.Cir.1994) (citing Bosco v. United States, 931 F.2d 879, 883 (Fed.Cir.1991)). The CSRA, by its terms, however, does not encompass every adverse personnel action against a federal employee. See Romero, 38 F.3d at 1211. The question then becomes whether the CSRA “covers” Worthington’s action. To determine the coverage of the CSRA, this court assesses the jurisdiction of the Board, the primary institution for adjudicating an employee’s allegations of prohibited personnel practices under the CSRA. For example, where the Board has jurisdiction over a claim, this court has held" }, { "docid": "16816674", "title": "", "text": "the employee does not have an independent cause of action in the Claims Court.”). See generally United States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988) (holding that the Civil Service Reform Act gives the MSPB exclusive responsibility for adjudicating rights of federal employees subject to removal and other personnel actions); Worthington, 168 F.3d at 26 (“Fausto deprives the Court of Federal Claims of jurisdiction over personnel actions covered by the CSRA.”). Thus, because the MSPB has jurisdiction over claims to enforce back pay awards, it follows that the Court of Federal Claims does not. If Ms. Pueschel has any action against the agency for an additional recovery attributable to her improper removal, she would have to petition the MSPB for enforcement of its prior reinstatement order under 5 C.F.R. § 1201.182. In-the event that she chooses to follow that route at some future time, we express no opinion as to the timeliness of such a petition or whether the MSPB would have the authority to alter her back pay award on the ground that she should have been granted a larger total award based on an entitlement to workers’ compensation payments during the period of her removal. What is clear is that jurisdiction to address such a claim does riot lie in the Court of Federal Claims. We therefore uphold that court’s decision dismissing the complaint for lack of jurisdiction. AFFIRMED." }, { "docid": "11049731", "title": "", "text": "7463 claims as well as CSRA claims. We agree. Indeed, Fausto is directly on point in this case. In Fausto, an employee of the Fish and Wildlife Service was dismissed for unauthorized use of a government vehicle. He appealed to the MSPB, which dismissed his appeal on the ground that, as a non-preference eligible in the excepted service, he had no right to appeal to the Board. Fausto then filed a claim in the Claims Court, seeking damages under the Back Pay Act. The issue on appeal was whether the CSRA precluded judicial review of Fausto’s claim, notwithstanding the fact that it provided no formal right of appeal to the Board. The Supreme Court held that, because of the comprehensive nature of the CSRA, and because the challenged adverse action was of the type specifically envisioned by the CSRA, Congress intended to preclude judicial review of Fausto’s claim. See Fausto, 484 U.S. at 455, 108 S.Ct. 668 (“[The] deliberate exclusion of employees in respondent’s service category from the provisions establishing administrative and judicial review for personnel action of the sort at issue here prevents respondent from seeking review in the Claims Court....”). Like the appellant in Fausto, Dr. Khan falls within a special category of employee that has been specifically excluded from the procedures and protections set forth in chapter 75 of the CSRA. As in Fausto, Dr. Khan’s cause of action is of the type envisioned by the CSRA. See 5 U.S.C. § 7512 (1994) (chapter 75, subchapter II applies, inter alia, to removal and suspension for more than 14 days.); see also Fisher v. United States Postal Serv., 68 M.S.P.R. 70 (1995) (holding that involuntary retirement claim is appealable to the Board). Accordingly, the specific exclusion of Dr. Khan from the CSRA provisions covering involuntary retirement claims prevents him from seeking review in the Court of Federal Claims under the Tucker Act. See Fausto, 484 U.S. at 455,108 S.Ct. 668. We note, of course, that Dr. Khan is not entirely precluded from seeking judicial review of his claim. VHA doctors and other section 7401(1) personnel may appeal a" }, { "docid": "16816673", "title": "", "text": "and enforce compliance with any such order; 5 U.S.C. § 1204(a)(1)-(2) (emphasis added). We have previously interpreted section 1204(a) as constituting a “broad grant of enforcement power” for the MSPB to ensure that agencies restore improperly discharged employees to the status quo ante. Kerr v. Nat’l Endowment for the Arts, 726 F.2d 730, 733 (Fed.Cir.1984). The MSPB thus has authority to adjudicate the merits of petitions for enforcement alleging error by an agency in awarding back pay pursuant to an MSPB order reversing a personnel action. See Worthington v. United States, 168 F.3d 24, 27 (Fed.Cir.1999) (“[T]he Board has jurisdiction over claims for back pay if it has (or had) jurisdiction over the underlying claim.”); Spezzaferro v. FAA, 24 M.S.P.R. 25 (1984). This court has long held that the Court of Federal Claims does not have jurisdiction over a case that could be heard by the MSPB. McClary v. United States, 775 F.2d 280, 282 (Fed.Cir.1985) (“Where an employee is provided a means of redress under the CSRA, that is, an appeal to the Board, the employee does not have an independent cause of action in the Claims Court.”). See generally United States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988) (holding that the Civil Service Reform Act gives the MSPB exclusive responsibility for adjudicating rights of federal employees subject to removal and other personnel actions); Worthington, 168 F.3d at 26 (“Fausto deprives the Court of Federal Claims of jurisdiction over personnel actions covered by the CSRA.”). Thus, because the MSPB has jurisdiction over claims to enforce back pay awards, it follows that the Court of Federal Claims does not. If Ms. Pueschel has any action against the agency for an additional recovery attributable to her improper removal, she would have to petition the MSPB for enforcement of its prior reinstatement order under 5 C.F.R. § 1201.182. In-the event that she chooses to follow that route at some future time, we express no opinion as to the timeliness of such a petition or whether the MSPB would have the authority to alter her back pay award" }, { "docid": "5630334", "title": "", "text": "RADER, Circuit Judge. The United States Court of Federal Claims dismissed James L. Worthington’s claim for overtime pay under the Back Pay Act for lack of jurisdiction. See Worthington v. United States, 41 Fed. Cl. 181 (1998). Based on its determination that the Civil Service Reform Act (CSRA) covers Worthington’s claim, the trial court decided that the Merit Systems Protection Board (MSPB or Board) has exclusive jurisdiction. Because the MSPB does not have jurisdiction over Worthington’s claim and his claim otherwise falls within the jurisdictional grant of the Tucker Act, this court reverses and remands. I. In 1986, Worthington’s employer, the United States Forest Service, transferred him to Angeles National Forest as a Civil Engineering Technician. Following the transfer, he received poor performance ratings. After failing to qualify for a within-grade pay increase, Worthington was ultimately removed in August 1990 for unacceptable perfor-manee. Before his removal, on March 23, 1988, Worthington received an instruction letter from his supervisor. The letter expressed the supervisor’s concern that Worthington had shown a pattern of taking sick and annual leave without prior approval. As a result, the supervisor enumerated certain “measures.” These measures sought to ensure Worthington was “on the job when needed.” Specifically, she required Worthington to work a compressed “5-4-9” schedule. In a two-week period, the 5-4-9 compressed work schedule consists of one eight-hour day, eight nine-hour days, and every other Friday off (totaling 80 hours). In a March 28 letter to his Equal Employment Opportunity Counselor, Worthington stated that he believed he had been unlawfully placed on the compressed work schedule in violation of the Federal Employees Flexible and Compressed Work Schedules Act, 5 U.S.C. §§ 6120-6133 (1994). In May, he filed a formal discrimination complaint in which he' requested a hearing before an Administrative Judge appointed by the Equal Employment Opportunity Commission. On April 2, 1990, in connection with the discrimination complaint, the Forest Service rescinded and canceled the letter of instruction. The April 2 letter apologized for the restrictions set forth in the March 23 letter, stating that “[tjhis action was unwarranted.” Mr. Worthington then filed a claim with" }, { "docid": "19597296", "title": "", "text": "78 L.Ed.2d 17 (1983) (citation omitted). The fact that Congress made decisions of the Chief \"not ... appealable or reviewable in any manner\" in certain parts of the CAA underscores that we must refrain from reading that phrase into the Special Rule when Congress has left it out. So too, 2 U.S.C. § 1351(a)(1), incorporating 5 U.S.C. § 7121(c) and defining the subjects excluded from any negotiated grievance procedure, excludes from negotiation \"a suspension or removal\" under 5 U.S.C. § 7532 involving \"interests of national security,\" suggesting that other suspensions or removals are subject to negotiation. Apart from the TCA, the Police argues that the proposals were \"inconsistent with Federal law\" because legislative employees lack rights, under title 5, to appeal adverse personnel actions to the Merit Systems Protection Board (\"MSPB\"), which implies that review through a grievance procedure is also precluded. \"Because Congress did not afford [Police] employees the statutory right to appeal terminations, they cannot obtain those rights through the negotiated grievance procedure.\" Petitioner's Br. at 3. The Police relies on the Supreme Court's decision in United States v. Fausto , 484 U.S. 439, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988), and cases interpreting Fausto . That argument is not supported by the Fausto line of cases and is untenable. Fausto presented the question of whether the Civil Service Reform Act (\"CSRA\") precluded a nonpreference eligible employee in the excepted service from seeking judicial review for an allegedly improper job suspension. Such review was admittedly not available before the MSPB under the CSRA. But the employee asserted that review was available in the Court of Claims under the Back Pay Act. Id. at 440-41, 108 S.Ct. 668. The Supreme Court noted that the CSRA \"comprehensively overhauled the civil service system\" and created an elaborate \"new framework for evaluating adverse personnel actions against\" executive branch employees, including the right to appeal agency decisions to the MSPB and then to this court. Id. at 443, 446, 108 S.Ct. 668 (citation omitted). But \"[n]o provision of the CSRA gives nonpreference eligible members of the excepted service the right to administrative or" }, { "docid": "5630342", "title": "", "text": "or regulation provides for Board jurisdiction over agency denials of back pay per se.” Id. at 28. It then proceeded to distinguish, however, the situation where the agency’s denial of back pay followed a Board reversal of an unwarranted personnel action. It found that the appeal of such a denial “is not an original personnel action,” rather, the Board’s enforcement power over a “subsequent agency action concerning a prevailing appellant” is “continuing in nature.” Id. at 29. Thus, the Board in Spezzaferro did not find that it has jurisdiction over all claims for back pay. Instead, in its own words, “the Board has authority to adjudicate the merits of petitions for enforcement alleging error by an agency in awarding back pay pursuant to a Board order reversing a personnel action.” Id. at 26 (emphasis added). In other words, the Board has jurisdiction over claims for back pay if it has (or had) jurisdiction over the underlying claim. As previously discussed, the Board has no jurisdiction over Worthington’s underlying claim and therefore, per Spezzaferro, no jurisdiction over his back pay claim. Thus, because Worthington’s claim is not within the coverage of the CSRA and because it otherwise falls within the jurisdictional grant of the Tucker Act, the Court of Federal Claims has jurisdiction to adjudicate this dispute. Worthington has pursued several other claims relating to his employment in the Forest Service-before a number of administrative and judicial bodies. Whether any of those actions give rise to res judicata or collaterally bar Worthington from pursuing this present action, however, is not before this court. COSTS Each party shall bear its own costs. REVERSED and REMANDED. . Section 6127 of that Act provides: (a) Notwithstanding section 6101 of this title, each agency may establish programs which' use a 4-day workweek or other compressed schedule. (b)(1) An employee in a unit with respect to which an organization of Government employees has not been accorded exclusive recognition shall not be required to participate in any program under subsection (a) unless a majority of the employees in such program have voted to be so included. (2)" }, { "docid": "20162043", "title": "", "text": "subject to judicial review and that, in any event, El-Ganayni’s clearance was revoked in compliance with DOE regulations. The District Court concluded that Counts I and II required examination of the merits of the DOE’s decision to revoke his clearance, and therefore dismissed those claims for lack of jurisdiction. The District Court also concluded that the DOE followed its own regulations and dismissed Count III for failure to state a claim. El-Ganayni appealed. The District Court exercised jurisdiction under 28 U.S.C. § 1381. Jurisdiction in this court arises under 28 U.S.C. § 1291. We exercise plenary review of the District Court’s order granting the government’s motion to dismiss. Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.2008). III. A. The government, citing Egan, contends that Article III courts lack jurisdiction over this case because they lack jurisdiction to review the merits of a security clearance revocation. Citing Webster v. Doe, 486 U.S. 592, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988), and Stehney v. Perry, 101 F.3d 925 (3d Cir.1996), El-Ganayrii argues that we do have jurisdiction. To decide the jurisdictional question, we must examine all three of these cases in some detail. The plaintiff in Egan, Thomas M. Egan, worked at a naval facility where all employees were required to have security clearances. Egan, 484 U.S. at 520, 108 S.Ct. 818. After Egan had worked at the facility for a short time, the Navy denied him a security clearance and removed him from his position. Egan sought review by the federal Merit Systems Protection Board (“the Board”). Id. at 522,108 S.Ct. 818. During the ensuing Board proceedings, the Navy contended that the Board “did not have the authority to judge the merits of the underlying security-clearance determination” that led to Egan’s removal. Id. at 523, 108 S.Ct. 818. It argued that the Board could only inquire as to whether a clearance was a requirement for Egan’s position, and whether the required procedures had been followed in removing him. Id. The Board agreed that it had no authority to review the merits of a security clearance determination and sustained" }, { "docid": "5630341", "title": "", "text": "7701(a), 7712 (1994); 5 C.F.R. § 1201.3(a) (1998). Being forced to work a compressed work schedule does not, for example, constitute a removal, a suspension, a reduction in grade or pay, a furlough, or a reduction-in-foree, as enumerated in those provisions. Indeed, the government’s brief conspicuously fails to identify any provision that grants the MSPB jurisdiction over Worthington’s claim. In reaching the opposite conclusion, the Court of Federal Claims relies principally on a line of Board cases culminating in Spezzaferro v. Federal Aviation Administration, 24 M.S.P.R. 25 (1984). In Spezzaferro, the Board had previously reversed the appellants’ removal from their agency. After the agency reinstated them, the appellants again appealed to the Board alleging that the agency erred in calculating their back pay awards. In an initial decision, an Administrative Judge dismissed their claim for lack of jurisdiction over the merits of the back pay claim. . The Board reversed the initial decision and remanded for adjudication on the merits. After analyzing its precedent on the issue, the Board first noted that “no law, rule, or regulation provides for Board jurisdiction over agency denials of back pay per se.” Id. at 28. It then proceeded to distinguish, however, the situation where the agency’s denial of back pay followed a Board reversal of an unwarranted personnel action. It found that the appeal of such a denial “is not an original personnel action,” rather, the Board’s enforcement power over a “subsequent agency action concerning a prevailing appellant” is “continuing in nature.” Id. at 29. Thus, the Board in Spezzaferro did not find that it has jurisdiction over all claims for back pay. Instead, in its own words, “the Board has authority to adjudicate the merits of petitions for enforcement alleging error by an agency in awarding back pay pursuant to a Board order reversing a personnel action.” Id. at 26 (emphasis added). In other words, the Board has jurisdiction over claims for back pay if it has (or had) jurisdiction over the underlying claim. As previously discussed, the Board has no jurisdiction over Worthington’s underlying claim and therefore, per Spezzaferro, no jurisdiction" }, { "docid": "5630339", "title": "", "text": "(and any other court relying on Tucker Act jurisdiction) is not an “appropriate authority” [under the Back Pay Act] to review an agency’s personnel determination.... Such authority would include the agency itself, or the MSPB or the Federal Circuit where those entities have the authority to review the agency’s determination. 484 U.S. at 454, 108 S.Ct. 668. This court has noted that Fausto deprives the Court of Federal Claims of jurisdiction over personnel actions covered by the CSRA. See Romero v. United States, 38 F.3d 1204, 1211 (Fed.Cir.1994) (citing Bosco v. United States, 931 F.2d 879, 883 (Fed.Cir.1991)). The CSRA, by its terms, however, does not encompass every adverse personnel action against a federal employee. See Romero, 38 F.3d at 1211. The question then becomes whether the CSRA “covers” Worthington’s action. To determine the coverage of the CSRA, this court assesses the jurisdiction of the Board, the primary institution for adjudicating an employee’s allegations of prohibited personnel practices under the CSRA. For example, where the Board has jurisdiction over a claim, this court has held that the. Claims Court does not. See McClary v. United States, 775 F.2d 280, 282 (Fed.Cir.1985) (“Where an employee is provided a means of redress under the CSRA, that is, an appeal to the Board, the employee does not have an independent cause of action in the Claims Court.”). The Claims Court, in turn, took this analysis a step further by applying it the other way around-if the Board does not have jurisdiction, then the Claims Court (and thus the Court of Federal Claims) does. See Shelleman v. United States, 9 Cl.Ct. 452, 458 (1986) (“[A]ny residual Tucker Act jurisdiction relating to federal personnel actions should be analyzed according to the exclusive jurisdiction prescribed in the CSRA relative to the MSPB.”). The Board’s jurisdiction is not plenary, but limited to that conferred by law, rule, or regulation. Upon review of the relevant provisions, this court finds no law, rule, or regulation that gives the Board jurisdiction over Worthington’s claim for violation of the Federal Employees Flexible and Compressed Work Schedules Act. See 5 U.S.C. §§" }, { "docid": "19831628", "title": "", "text": "serve as a juror within the meaning of section 6322(a). Ms. Hall did not re-file her appeal with the MSPB following the issuance of the OPM decision. More than three years later, Ms. Hall filed this action in the Court of Federal Claims, seeking back pay for the pre-removal period during which she was still employed but was designated as being on AWOL status. She also sought ancillary relief in the form of reinstatement and post-removal back pay. The court dismissed the action for lack of jurisdiction, noting that the Civil Service Reform Act (“CSRA”) places disputes regarding removal actions within the exclusive jurisdiction of the MSPB, and stating that all of Ms. Hall’s claims stemmed from her removal. Ms. Hall appeals from that decision. She asserts that her claims are not based on the removal action but are based instead on section 6322(a) and the Back Pay Act, 5 U.S.C. § 5596. II It is well established that the Court of Federal Claims lacks jurisdiction over personnel actions that are covered by the CSRA. See United States v. Fausto, 484 U.S. 439, 449, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988). The CSRA, however, does not encompass every adverse personnel action against a federal employee, and therefore does not preempt all employee pay claims that would otherwise be within the jurisdiction of the Court of Federal Claims. In determining whether the Court of Federal Claims has jurisdiction over a federal employee’s claim for pay arising from an adverse personnel action, the threshold question is whether the CSRA “ ‘covers’ [the challenged] action.” Worthington v. United States, 168 F.3d 24, 26 (Fed.Cir.1999); Romero v. United States, 38 F.3d 1204, 1211 (Fed.Cir.1994) (“Fausto holds that the CSRA provides ‘the only means of review as to the types of adverse personnel action specifically covered by the CSRA.’ ”) (citations omitted). If the CSRA does not deprive the Court of Federal Claims of jurisdiction over a particular dispute, we proceed to the standard jurisdictional inquiry under the Tucker Act, 28 U.S.C. § 1491, which considers whether the claimant has identified a source of substantive" }, { "docid": "11049730", "title": "", "text": "under chapter 75 of title 5. Instead, the appeals in Cochran and Dick were based on 5 U.S.C. § 1221 (1994), and the appeal in Von Zemenszky was brought under 5 U.S.C. §§ 3501-4 (1994). Having established that Dr. Khan must bring his involuntary retirement action under 38 U.S.C. § 7463 and that he may not appeal from the agency to the MSPB under chapter 75 of title 5, we must finally decide whether the VHA’s jurisdiction under 38 U.S.C. § 7463 is exclusive. Whether 38 U.S.C. § 7463 creates an exclusive remedy for section 7401(1) personnel is a question of first impression for this court. Dr. Khan argues that, even if his claim falls within section 7463, “that does not necessarily mean that such procedures preclude presenting the claim to the Court of Federal Claims.” The government argues that Fausto, which held that a Tucker Act court has no jurisdiction over claims that are independently covered by the CSRA, see Fausto, 484 U.S. at 455, 108 S.Ct. 668, is broad enough to encompass section 7463 claims as well as CSRA claims. We agree. Indeed, Fausto is directly on point in this case. In Fausto, an employee of the Fish and Wildlife Service was dismissed for unauthorized use of a government vehicle. He appealed to the MSPB, which dismissed his appeal on the ground that, as a non-preference eligible in the excepted service, he had no right to appeal to the Board. Fausto then filed a claim in the Claims Court, seeking damages under the Back Pay Act. The issue on appeal was whether the CSRA precluded judicial review of Fausto’s claim, notwithstanding the fact that it provided no formal right of appeal to the Board. The Supreme Court held that, because of the comprehensive nature of the CSRA, and because the challenged adverse action was of the type specifically envisioned by the CSRA, Congress intended to preclude judicial review of Fausto’s claim. See Fausto, 484 U.S. at 455, 108 S.Ct. 668 (“[The] deliberate exclusion of employees in respondent’s service category from the provisions establishing administrative and judicial review for" }, { "docid": "5630340", "title": "", "text": "that the. Claims Court does not. See McClary v. United States, 775 F.2d 280, 282 (Fed.Cir.1985) (“Where an employee is provided a means of redress under the CSRA, that is, an appeal to the Board, the employee does not have an independent cause of action in the Claims Court.”). The Claims Court, in turn, took this analysis a step further by applying it the other way around-if the Board does not have jurisdiction, then the Claims Court (and thus the Court of Federal Claims) does. See Shelleman v. United States, 9 Cl.Ct. 452, 458 (1986) (“[A]ny residual Tucker Act jurisdiction relating to federal personnel actions should be analyzed according to the exclusive jurisdiction prescribed in the CSRA relative to the MSPB.”). The Board’s jurisdiction is not plenary, but limited to that conferred by law, rule, or regulation. Upon review of the relevant provisions, this court finds no law, rule, or regulation that gives the Board jurisdiction over Worthington’s claim for violation of the Federal Employees Flexible and Compressed Work Schedules Act. See 5 U.S.C. §§ 7701(a), 7712 (1994); 5 C.F.R. § 1201.3(a) (1998). Being forced to work a compressed work schedule does not, for example, constitute a removal, a suspension, a reduction in grade or pay, a furlough, or a reduction-in-foree, as enumerated in those provisions. Indeed, the government’s brief conspicuously fails to identify any provision that grants the MSPB jurisdiction over Worthington’s claim. In reaching the opposite conclusion, the Court of Federal Claims relies principally on a line of Board cases culminating in Spezzaferro v. Federal Aviation Administration, 24 M.S.P.R. 25 (1984). In Spezzaferro, the Board had previously reversed the appellants’ removal from their agency. After the agency reinstated them, the appellants again appealed to the Board alleging that the agency erred in calculating their back pay awards. In an initial decision, an Administrative Judge dismissed their claim for lack of jurisdiction over the merits of the back pay claim. . The Board reversed the initial decision and remanded for adjudication on the merits. After analyzing its precedent on the issue, the Board first noted that “no law, rule," }, { "docid": "17732907", "title": "", "text": "office of the adjutant general. Plaintiffs circular attempt to avoid this result by arguing that the adjutant general’s exclusive jurisdiction lies only in cases where the initial termination was not erroneous has no basis in law. A termination decision cannot be determined erroneous until it is reviewed. Therefore, the right to review cannot be predicated upon whether the termination decision was erroneous. Although plaintiff has received an interim advisory opinion from the DOD Inspector General that the termination decision was erroneous, the Inspector General’s conclusion binds neither the adjutant general nor the court, and the NGTA provides no right to review based on such opinions. 4. Whether the CSRA bars plaintiffs claims for reinstatement and back pay Even if the court were to find that the NGTA does not place review of plaintiffs dismissal within the exclusive jurisdiction of the adjutant general, the Court of Federal Claims would lack jurisdiction over plaintiffs claim for back pay by operation of the CSRA. Claims by covered employees may be maintained in those instances where the CSRA does not expressly prohibit such action and the court independently is vested with a basis for jurisdiction. Worthington v. United States, 168 F.3d 24, 26 (Fed.Cir.1999); Bosco v. United States, 976 F.2d 710, 713-14 (Fed.Cir.1992). The Court of Federal Claims has jurisdiction over claims brought under the Back Pay Act. Kanemoto v. Reno, 41 F.3d 641, 646 (Fed.Cir.1994). However, the CSRA expressly mandates that in cases involving removal, National Guard technicians are not employees entitled to appeal removal decisions to the Merit Systems Protection Board. 5 U.S.C. § 7511(b)(5) (“This subchapter does not apply to an employee ... who is described in section 8337(h)(1), relating to technicians in the National Guard____”). The Supreme Court in United States v. Fausto, 484 U.S. 439, 447-48, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988), held that, as the CSRA thereby expresses congressional intent not to allow appeal by certain categories of employees, those employees also are precluded from seeking any judicial review of removal decisions. Therefore, the Court of Federal Claims cannot review the underlying dismissal and lacks jurisdiction over" } ]

[ { "docid": "16931924", "title": "", "text": "the fourth amendment’s proscription against unreasonable searches and seizures was specifically left open by the Supreme Court’s decision in Brown v. Texas, 443 U.S. 47, 53 n.3, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979) (holding that a person could not be required to furnish identification if not reasonably suspected of any criminal conduct). Because Terry approved a more substantial intrusion upon the person (a limited patdown search for weapons) when a police officer possesses “articulable suspicion less than probable cause,” 392 U.S. at 31, 88 S.Ct. at 1885, the Solomon court concluded that a temporary detention followed by a request for identification also was justifiable. 33 Cal.App.3d at 435-37,108 Cal.Rptr. 867. The Solomon court applied the Terry test by balancing the public interest with the individual’s right to personal security free from arbitrary interference by law officers. It found that “the public need involved, protection of society against crime, is strong, while the individual right involved, anonymity when loitering on the streets under suspicious circumstances, is weak.” 33 Cal.App.3d at 436-37, 108 Cal. Rptr. 867. Although the .prevention of crime is “a weighty social objective,” Brown, 443 U.S. at 52, 99 S.Ct. at 2641, we agree with the courts and commentators who have concluded that statutes like section 647(e), which require the production of identification, are in violation of the fourth amendment. The two reasons for this conclusion are that as a result of the demand for identification, the statutes bootstrap the authority to arrest on less than probable cause, and the seri ous intrusion on personal security outweighs the mere possibility that identification may provide a link leading to arrest. The first reason was explained by the Second Circuit when it considered a New York vagrancy statute which, as written, was very similar to section 647(e) as construed by the Solomon court. United States ex rel. Newsome v. Malcolm, 492 F.2d 1166, 1171-74 (2d Cir. 1974), aff’d sub nom. Lefkowitz, Attorney General of New York v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975). In finding the statute unconstitutional, the Newsome court noted that such" } ]

[ { "docid": "15751704", "title": "", "text": "and Burks were not acting suspiciously in any manner and that he did not suspect them of having committed any criminal activity. At one point Lottmann indicated that he thought appellant could possibly have been a high school student. However, in later testimony Lottmann revealed that when he made the stop, he did not suspect appellant or Burks of being involved in the high school racial incident. Lottmann’s testimony demonstrates that not only did he lack “a reasonable suspicion” that appellant was involved in criminal activity, he actually had no suspicion whatsoever that appellant or Burks was involved in criminal activity. We recognize that Officer Lottmann’s stop was an attempt to further the social objective of crime prevention. However, the balance tips in favor of freedom from police interference when there is no articulable basis for suspecting appellant Palmer of involvement in criminal activity. “[E]ven assuming that [crime prevention] is served to some degree by stopping and demanding identification from an individual without any specific basis for believing he is involved in criminal activity, the guarantees of the Fourth Amendment do not allow it. When such a stop is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits. See Delaware v. Prouse, supra, [99 S.Ct. at 1400].” Brown v. Texas, supra, -U.S. at -, 99 S.Ct. at 2641. Secondly, we consider whether Officer Lottmann was acting pursuant to a plan incorporating explicit, neutral limitations on his conduct. Although this issue was not argued by the parties, Officer Lottmann did give testimony relevant to the issue at the hearings before the magistrate. Lottmann testified that his supervisor on October 20, 1977, Lieutenant Benoise, had told him to intensify his patrol in the area. Additional testimony revealed that Lottmann himself had made the decision that the way he would intensify the patrol would be by filling out field interview reports (FIRS). Lottmann indicated that he had completed five, possibly ten, FIRS before the time he stopped appellant and Burks. When questioned as to the guidelines officers use in filling out FIRS, Lottmann specified two guidelines." }, { "docid": "11843366", "title": "", "text": "817, 105 S.Ct. 1643. In reaching that conclusion, the Court recognized that fingerprinting is a Fourth Amendment search, albeit a “much less serious intrusion upon personal security than other types of searches and detentions.” Id. at 814, 105 S.Ct. 1643 (emphasis added); see generally Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Hayes thus stands for the proposition that an identification procedure constituting a search is permissible during a Terry stop if the procedure is reasonable under the circumstances. Askew dismisses the import of Hayes by suggesting that fingerprinting is not a search. Askew’s position ignores the Hayes language comparing fingerprinting to “other types of searches and detentions.” Hayes, 470 U.S. at 814, 105 S.Ct. 1643 (emphasis added). Moreover, if As kew were correct, the Supreme Court could not have limited fingerprinting during Terry stops to cases where the police have a “reasonable basis for believing that fingerprinting will establish or negate the suspect’s connection with that crime.” Id. at 817, 105 S.Ct. 1643. In other words, if fingerprinting were not a search, the police would not have to make any showing to take fingerprints during any — or indeed every — Terry stop. That is obviously not what Hayes held; in fact, Hayes said just the opposite. In their separate opinion in Hayes, Justices Brennan and Marshall similarly interpreted the Court’s majority opinion to allow a search (fingerprinting) without probable cause during a Terry stop. They strenuously objected to this result, however, because they argued — as Askew does here — that the only search permitted during a Terry stop is a protective frisk for weapons. They complained that on-site fingerprinting involves “a singular intrusion on the suspect’s privacy” that is not “justifiable (as was the patdown in Terry) as necessary for the officer’s protection.” Id. at 819, 105 S.Ct. 1643 (Brennan, J., concurring in judgment). Indeed, they labeled the majority’s conclusion a “regrettable assault on the Fourth Amendment.” Id. Of course, Justices Brennan and Marshall could call the Hayes majority opinion a “regrettable assault on the Fourth Amendment” only because the decision" }, { "docid": "22725786", "title": "", "text": "held that the intrusiveness of even these brief stops for purposes of questioning is sufficient to render them “seizures” under the Fourth Amendment. See Terry v. Ohio, 392 U. S., at 16. For precisely that reason, the scope of seizures of the person on less than probable cause that Terry permits is strictly circumscribed to limit the degree of intrusion they cause. Terry encounters must be brief; the suspect must not be moved or asked to move more than a short distance; physical searches are permitted only to the extent necessary to protect the police officers involved during the encounter; and, most importantly, the suspect must be free to leave after a short time and to decline to answer the questions put to him. “[T]he person may be briefly detained against his will while pertinent questions are directed to him. Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation.” Id., at 34 (White, J., concurring). Failure to observe these limitations converts a Terry encounter into the sort of detention that can be justified only by probable cause to believe that a crime has been committed. See Florida v. Royer, 460 U. S., at 501 (opinion of White, J.); id., at 509-511 (Brennan, J., concurring in result); Dunaway v. New York, supra, at 216. The power to arrest — or otherwise to prolong a seizure until a suspect had responded to the satisfaction of the police officers — would undoubtedly elicit cooperation from a high percentage of even those very few individuals not sufficiently coerced by a show of authority, brief physical detention, and a frisk. We have never claimed that expansion of the power of police officers to act on reasonable suspicion alone, or even less, would further no law enforcement interests. See, e. g., Brown v. Texas, 443 U. S. 47, 52 (1979). But the balance struck by the Fourth Amendment between the public interest in effective law enforcement and the" }, { "docid": "22710972", "title": "", "text": "obtaining more information. . . .” Adams v. Williams, 407 U. S., at 146. Anything more than a brief stop “must be based on consent or probable cause.” United States v. Brignoni-Ponce, supra, at 882. During the course of this stop, “the suspect must not be moved or asked to move more than a short distance; physical searches are permitted only to the extent necessary to protect the police officers involved during the encounter; and, most importantly, the suspect must be free to leave after a short time and to decline to answer the questions put to him.” Kolender v. Lawson, 461 U. S., at 365 (Brennan, J., concurring). It is true that Terry stops may involve seizures of personal effects incidental to the seizure of the person involved. Obviously, an officer cannot seize a person without also seizing the personal effects that the individual has in his possession at the time. But there is a difference between incidental seizures of personal effects and seizures of property independent of the seizure of the person. The Fourth Amendment protects “effects” as well as people from unreasonable searches and seizures. In this regard, Justice Stevens pointed out in Texas v. Brown, 460 U. S. 730 (1983), that “[t]he [Fourth] Amendment protects two different interests of the citizen — the interest in retaining possession of property and the interest in maintaining personal privacy.” Id., at 747 (opinion concurring in judgment). “A seizure threatens the former, a search the latter.” Ibid. Even if an item is not searched, therefore, its seizure implicates a protected Fourth Amendment interest. For this reason, seizures of property must be based on probable cause. See Colorado v. Bannister, 449 U. S. 1, 3 (1980); Payton v. New York, 445 U. S. 573, 587 (1980); G. M. Leasing Corp. v. United States, 429 U. S. 338, 351 (1977); Chambers v. Maroney, 399 U. S. 42, 51-52 (1970); Warden v. Hayden, 387 U. S. 294, 309-310 (1967). See also Texas v. Brown, supra, at 747-748 (Stevens, J., concurring in judgment). Neither Terry nor its progeny changed this rule. In this case," }, { "docid": "1517939", "title": "", "text": "17. Plaintiff appeared in court on March 27, 1989, and pleaded innocent to the charges filed against him. All charges were dropped later that same day. Appellant’s App. at 186-87. In the present case, although the plaintiff was charged with violation of two misdemeanors, it is now urged on the petition for rehearing that the officer had a right to demand identification of Gainor under Minn.Stat. § 609.506 (1988). The latter law makes it unlawful for an individual to give an officer a false name or information during an arrest or during an investigative stop. In Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), the Court held unlawful the arrest of a suspicious looking man in an alley. The Court observed that “[t]he flaw in the State’s case is that none of the circumstances preceding the officers’ detention of appellant justified a reasonable suspicion that he was involved in criminal conduct.” Id. at 51-52, 99 S.Ct. at 2641. The Court further reasoned: The Texas statute under which appellant was stopped and required to identify himself is designed to advance a weighty social objective in large metropolitan centers: prevention of crime. But even assuming that purpose is served to some degree by stopping and demanding identification from an individual without any specific basis for believing he is involved in criminal activity, the guarantees of the Fourth Amendment do not allow it. When such a stop is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits. Id. at 52, 99 S.Ct. at 2641. When examining the plaintiff’s allegations and the evidentiary support contained in the depositions, we find plaintiff’s allegations sufficiently supported by the record to overcome Officer Rogers’ defense that a reasonable officer could believe the arrest was lawful. Plaintiff’s testimony as well as that of his companion, Dittmer, lend sufficient support that Gainor was not guilty of any disorderly conduct and that he was merely “walking around the country with his cross and preaching the Gospel of Jesus.” Amended Complaint, Appellant’s App. at 186. This conduct, if true," }, { "docid": "22710971", "title": "", "text": "well beyond Royer in endorsing the notion that the principles of Terry permit “warrantless seizures of personal luggage from the custody of the owner on the basis of less than probable cause, for the purpose of pursuing a limited course of investigation, short of opening the luggage, that would quickly confirm or dispel the authorities’ suspicion.” Ante, at 702. See also ante, at 706. In addition to being unnecessary to the Court’s judgment, see supra, at 711, this suggestion finds no support in Terry or its progeny and significantly dilutes the Fourth Amendment’s protections against government interference with personal property. In short, it represents a radical departure from settled Fourth Amendment principles. As noted supra, at 711-712, Terry and the cases that followed it authorize a brief “investigative” stop of an individual based on reasonable suspicion and a limited search for weapons if the officer reasonably suspects that the individual is armed and presently dangerous. The purpose of this brief stop is “to determine [the individual’s] identity or to maintain the status quo momentarily while obtaining more information. . . .” Adams v. Williams, 407 U. S., at 146. Anything more than a brief stop “must be based on consent or probable cause.” United States v. Brignoni-Ponce, supra, at 882. During the course of this stop, “the suspect must not be moved or asked to move more than a short distance; physical searches are permitted only to the extent necessary to protect the police officers involved during the encounter; and, most importantly, the suspect must be free to leave after a short time and to decline to answer the questions put to him.” Kolender v. Lawson, 461 U. S., at 365 (Brennan, J., concurring). It is true that Terry stops may involve seizures of personal effects incidental to the seizure of the person involved. Obviously, an officer cannot seize a person without also seizing the personal effects that the individual has in his possession at the time. But there is a difference between incidental seizures of personal effects and seizures of property independent of the seizure of the person. The" }, { "docid": "22713743", "title": "", "text": "in this case were suspected of offloading large quantities of drugs from vessels that had recently arrived at the coast, an activity that, under Place, triggers sufficiently special and important law enforcement interests to justify a Terry stop. A stop can also be unduly intrusive if the individual is moved or asked to move more than a short distance, if a search is more extensive than necessary to protect the police from an objective fear of danger, or if tactics amounting to custodial interrogation are used. See Dunaway v. New York, 442 U. S. 200 (1979); Kolender v. Lawson, 461 U. S. 352, 365 (1983) (Brennan, J., concurring). The majority suggests that the 90-minute detention in Place was held too long only because the police had not acted diligently enough. In my view, the statements quoted in text adequately demonstrate that the length of the detention “alone” was “sufficient” to invalidate the seizure. We recognized a similar point in Dunaway: “A single, familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.” 442 U. S., at 213-214. Cf. Dunaway, swpra, at 219-220 (White, J., concurring) (rules defining appropriate Terry stops must be fashioned on categorical basis, rather than resolved “in an ad hoc, case-by-case fashion by individual police officers”). At least we have until today. The language from Cady v. Dombrowski, 413 U. S. 433, 447 (1973), quoted ante, at 687, to the effect that full-scale Fourth Amendment searches may be reasonable even if not accomplished in the least intrusive means is of course wholly inconsistent with the holding of Royer. Cady, quite obviously, has nothing to do with the Terry stop issue here; there the question was whether a search that the Court found legitimate had to be accomplished in any particular way, while here the issue is whether the police have intruded on an individual so substantially as to need probable cause. I assume Royer’s holding remains the law on this point, and that the Court’s" }, { "docid": "415181", "title": "", "text": "zealously because Tom fled zealously. . See Terry, 88 S.Ct. at 1886 (White, J., concurring) (\"[G]iven the proper circumstances, ... it seems to me the person may be briefly detained against his will while pertinent questions are directed to him. Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation.”). . Despite repeated references to this problem, the Supreme Court has never resolved it. See Terry, 88 S.Ct. at 1879 n. 16 (declining to address the constitutionality of \"an investigative ‘seizure’ upon less than probable cause for purposes of ‘detention’ and/or interrogation”); Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 2641 n. 3, 61 L.Ed.2d 357 (1979) (reserving question \"whether an individual may be punished for refusing to identify himself in the context of a lawful investigatory stop which satisfies Fourth Amendment requirements”); Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 1860 n. 10, 75 L.Ed.2d 903 (1983) (reserving question whether statute making it a crime to refuse to identify one’s self to peace officer who so requests and has reasonable suspicion to do so permits arrest without probable cause). Various dissenters have argued that a refusal to answer questions posed during a Terry stop cannot permit the officer to elevate his or her reasonable suspicion into probable cause. See, e.g., Michigan v. DeFillippo, 99 S.Ct. at 2635-36 (Brennan, Marshall, and Stevens, JJ., dissenting) (“individuals accosted by police on the basis merely of reasonable suspicion have a right not to be searched, a right to remain silent, and, as a corollary, a right not to be searched if they choose to remain silent”). For the sake of clari ty, we note that the Supreme Court has resolved the analogous question with respect to consensual encounters: a refusal to cooperate in a consensual encounter does not furnish the officers with reasonable suspicion. Bostick, 111 S.Ct. at 2387. . The statute provides that \"A person who knowingly or intentionally ... [fllees from a" }, { "docid": "6798412", "title": "", "text": "the invalid seizure occasioned the discovery of the drug paraphernalia in his trash bag. The Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), held that a police officer may briefly detain an individual, question him, and perform a limited frisk for weapons if the officer reasonably suspects the individual of criminal activity. The district court, by adopting the magistrate judge’s report and recommendation, determined that the police reasonably suspected Chapman of criminal activity. It could be questioned whether Chapman was sufficiently seized even to constitute a Terry stop. Chapman was never frisked before he dropped the bag. Napier simply identified himself as a police officer and requested to ask Chapman a few questions about a narcotics investigation. Napier never ordered Chapman not to move. In Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), a plurality of the Supreme Court noted: Law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. Id. at 497-98, 103 S.Ct. 1319 (citations omitted). Although this passage in Royer was supported by only a plurality of the Court and was in the context of finding that a particular encounter that went beyond these circumstances was a Terry stop, this court has consistently stated that such activity falls well short of a seizure requiring any justification by the police. United States v. Taylor, 956 F.2d 572, 575 (6th Cir.1992) (ien banc) (“Relevant precedent has made clear that a" }, { "docid": "22725785", "title": "", "text": "reasonable suspicion, they may use a number of devices with substantial coercive impact on the person to whom they direct their attention, including an official “show of authority,” the use of physical force to restrain him, and a search of the person for weapons. Terry v. Ohio, supra, at 19, n. 16; see Florida v. Royer, 460 U. S. 491, 498-499 (1983) (opinion of White, J.); United States v. Mendenhall, 446 U. S. 544, 554 (1980) (opinion of Stewart, J.). During such an encounter, few people will ever feel free not to cooperate fully with the police by answering their questions. Cf. 3 W. LaFave, Search and Seizure § 9.2, pp. 53-55 (1978). Our case reports are replete with examples of suspects’ cooperation during Terry encounters, even when the suspects have a great deal to lose by cooperating. See, e. g., Sibron v. New York, 392 U. S. 40, 45 (1968); Florida v. Royer, supra, at 493-495. The price of that effectiveness, however, is intrusion on individual interests protected by the Fourth Amendment. We have held that the intrusiveness of even these brief stops for purposes of questioning is sufficient to render them “seizures” under the Fourth Amendment. See Terry v. Ohio, 392 U. S., at 16. For precisely that reason, the scope of seizures of the person on less than probable cause that Terry permits is strictly circumscribed to limit the degree of intrusion they cause. Terry encounters must be brief; the suspect must not be moved or asked to move more than a short distance; physical searches are permitted only to the extent necessary to protect the police officers involved during the encounter; and, most importantly, the suspect must be free to leave after a short time and to decline to answer the questions put to him. “[T]he person may be briefly detained against his will while pertinent questions are directed to him. Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for" }, { "docid": "13528715", "title": "", "text": "the objective justification. 675 F.2d at 131-32. Because the agents here did not have a basis for an articulable suspicion and because there is substantial evidence that Moya did not consent to the encounter, the seizure issue cannot be avoided here. The degree of intrusiveness of stops that do not rise to the level of arrests may vary, and in order to be lawful in a given case it must be proportional to the degree of suspicion that prompted the intrusion. When little or no suspicion exists, therefore, very little intrusion is tolerable. Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979), strongly states this principle of proportionality: In the absence of any basis for suspecting appellant of misconduct, the balance between the public interest and appellant’s right to personal security and privacy tilts in favor of freedom from police interference.... [Ejven assuming that [a strong social] purpose is served to some degree by stopping and demanding identification from an individual without any specific basis for believing he is involved in criminal activity, the guarantees of the Fourth Amendment do not allow it. When such a stop is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits. See also Delaware v. Prouse, 440 U.S. 648, 649, 654, 99 S.Ct. 1391, 1393, 1396, 59 L.Ed.2d 660 (1979) (“the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests”); United States v. Bautista, 684 F.2d 1286, 1290 (9th Cir.1982) (prolonged questions must be “related in scope to the justification for their initiation,” quoting United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975), quoting Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968)); United States v. Ramirez-Cifuentes, 682 F.2d 337, 343 (2d Cir.1982) (court must “carefully measure[ ] the need for the stop against the nature of the intrusion suffered”); United States v. Nembhard, 676 F.2d 193, 202 (6th Cir.1982) (reasonableness" }, { "docid": "1517940", "title": "", "text": "and required to identify himself is designed to advance a weighty social objective in large metropolitan centers: prevention of crime. But even assuming that purpose is served to some degree by stopping and demanding identification from an individual without any specific basis for believing he is involved in criminal activity, the guarantees of the Fourth Amendment do not allow it. When such a stop is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits. Id. at 52, 99 S.Ct. at 2641. When examining the plaintiff’s allegations and the evidentiary support contained in the depositions, we find plaintiff’s allegations sufficiently supported by the record to overcome Officer Rogers’ defense that a reasonable officer could believe the arrest was lawful. Plaintiff’s testimony as well as that of his companion, Dittmer, lend sufficient support that Gainor was not guilty of any disorderly conduct and that he was merely “walking around the country with his cross and preaching the Gospel of Jesus.” Amended Complaint, Appellant’s App. at 186. This conduct, if true, does not give rise to reasonable suspicion of criminal conduct. Brown, 443 U.S. at 51, 99 S.Ct. at 2641. Officer Rogers disputes Gainor’s factual claim. Rogers now asserts that Gainor was obstructing pedestrian traffic in a manner which gave rise to a suspicion of intoxication. The depositions show, as the district court observed, that the arrest did not take place until Rogers’ supervisors were called and Gainor refused to produce his identification. These factual issues give rise to a factual dispute on the merits as to whether Rogers had probable cause to arrest Gainor. Officer Rogers’ testimony as to the facts he had in his possession, however, is to be evaluated under the Mitchell standard in passing on the issue of qualified immunity. Thus, applying the teachings of Mitchell and Anderson, we initially need only look to plaintiff’s allegations to determine whether a reasonable officer could believe that the arrest was lawful under principles of clearly established law. As indicated, this analysis is to be done without any attempt to verify the correctness of plaintiff’s" }, { "docid": "22240251", "title": "", "text": "that the length and scope of a detention be “strictly tied to and justified by the circumstances which rendered its initiation permissible.” Terry v. Ohio, 392 U.S. 1, 16, 19, 88 S.Ct. 1868, 1877, 1878, 20 L.Ed.2d 889 (1968). Although police need only a reasonable suspicion of criminal activity to conduct a brief investigatory detention, see, e.g., id. at 30, 88 S.Ct. at 1884, the Fourth Amendment demands that the seizure be supported by probable cause when that detention rises to the level of an arrest. See, e.g., Dunaway v. New York, 442 U.S. 200, 212-14, 99 S.Ct. 2248, 2256-58, 60 L.Ed.2d 824 (1979) (finding that “the treatment of petitioner, whether or not it is technically characterized as an arrest, must be supported by probable cause”); Brown v. Texas, 443 U.S. 47, 50-52, 99 S.Ct. 2637, 2640-41, 61 L.Ed.2d 357 (1979); cf. Kolender v. Lawson, 461 U.S. 352, 365, 103 S.Ct. 1855, 1862, 75 L.Ed.2d 903 (1983) (Brennan, J., concurring) (“Detention beyond the limits of Terry without probable cause would improve the effectiveness of legitimate police investigations by only a small margin, but it would expose individual members of the public to exponential increases in both the intrusiveness of the encounter and the risk that police officers would abuse their discretion for improper ends.”). The Fourth Amendment’s protections are not limited to traditional, full-fledged arrest, but apply whenever “police, without probable cause or a warrant, forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station, where he is detained, although briefly, for investigative purposes.” Hayes v. Florida, 470 U.S. 811, 816, 105 S.Ct. 1643, 1647, 84 L.Ed.2d 705 (1985). The City argued that its blanket policy of allowing custody for firm identification was constitutional based on its interpretation of the statutory grant of authority to detain for identification for violations of infractions. See Or.Rev.Stat. § 153.110(3). However, that statute expressly denies authority to arrest for infractions. Id. In addition, Oregon courts have interpreted the statute as providing only a limited authority to stop and detain that" }, { "docid": "22659907", "title": "", "text": "the individual is involved in criminal activity. Delaware v. Prouse, supra, at 663; United States v. Brignoni-Ponce, supra, at 882-883; see also Lanzetta v. New Jersey, 306 U. S. 451 (1939), The flaw in the State’s case is that none of the circum stances preceding the officers’ detention of appellant justified a reasonable suspicion that he was involved in criminal conduct. Officer Yenegas testified at appellant’s trial that the situation in the alley “looked suspicious,” but he was unable to point to any facts supporting that conclusion. There is no indication in the record that it was unusual for people to be in the alley. The fact that appellant was in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that appellant himself was engaged in criminal conduct. In short, the appellant’s activity was no different from the activity of other pedestrians in that neighborhood. When pressed, Officer Venegas acknowledged that the only reason he stopped appellant was to ascertain his identity. The record suggests an understandable desire to assert a police presence; however, that purpose does not negate Fourth Amendment guarantees. In the absence of any basis for suspecting appellant of misconduct, the balance between the public interest and appellant’s right to personal security and privacy tilts in favor of freedom from police interference. The Texas statute under which appellant was stopped and required to identify himself is designed to advance a weighty social objective in large metropolitan centers: prevention of crime. But even assuming that purpose is served to some degree by stopping and demanding identification from an individual without any specific basis for believing he is involved in criminal activity, the guarantees of the Fourth Amendment do not allow it. When such a stop is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits. See Delaware v. Prouse, supra, at 661. The application of Tex. Penal Code Ann., Tit. 8, § 38.02 (1974), to detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe" }, { "docid": "22795925", "title": "", "text": "Fourth Amendment. 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). It stated, in part: The scope of the search must be strictly tied to and justified by the circumstances which rendered its initiation permissible. The reasonableness requirement of the Fourth Amendment requires no less when the police action is a seizure permitted on less than probable cause because of legitimate law enforcement interests. The scope of the detention must be carefully tailored to its underlying justifications. The predicate permitting seizures on suspicion short of probable cause is that law enforcement interests warrant a limited intrusion on the personal security of the suspect. The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time. Id. at 500, 103 S.Ct. 1319 (citations and internal quotation marks omitted). Although this case was decided by only a plurality of the Justices, there is no indication the plurality resulted because of the discussion of general principles that relate to this case. In fact, in his concurrence, Justice Brennan explained, \"I interpret the plurality’s requirement that the investigative methods employed pursuant to a Terry stop be 'the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time,’ to mean that the availability of a less intrusive means may make an otherwise reasonable stop unreasonable.” Id. at 511 n. *, 103 S.Ct. 1319 (Brennan, J., concurring in the result) (internal citation omitted). . In this case there is the unspoken issue of racial profiling. I recognize that counsel for Brigham neither challenged the initial propriety of the traffic stop for following too closely, nor did he raise an Equal Protection claim based on an impermissible racial classification (i.e., the unequal enforcement of laws based on race), nor" }, { "docid": "415169", "title": "", "text": "v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 2636-37, 61 L.Ed.2d 343 (Brennan, Marshall, and Stevens, JJ., dissenting) (1979). The plaintiff repeatedly argues that Voi-da placed Tom in this dilemma, and that by following him, Voida punished him for exercising his right not to respond to the investigatory stop. But the plaintiff mischaracterizes Tom’s reactions. He did not listen to Voida’s question and announce his refusal to respond to it. Nor did he calmly depart from her. Rather, he threw down his bicycle and fled from her, even after she had repeatedly ordered him to stop. Whether or not suspects have a right to refuse to respond to an investigative stop, a suspect’s actual flight from an officer may certainly provide information to ripen an officer’s preexisting suspicions into probable cause. Even Justice Brennan, one of the justices who has argued that a suspect in an investigative stop has a right to remain silent, see supra n. 9, has accepted the distinction between flight and a refusal to submit to more extensive questioning. In Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 1861, 75 L.Ed.2d 903 (1983), Justice Brennan asserted in his concurrence that “States may not authorize the arrest and criminal prosecution of an individual for failing to produce identification or further information on demand by a police officer” when the officer has only a reasonable suspicion of criminal activity. To the contrary, police officers with a reasonable suspicion “must allow the person to leave after a reasonably brief period of time unless the information they have acquired during the encounter has given them probable cause sufficient to justify an arrest.” Id., 103 S.Ct. at 1863. “Of course,” Justice Brennan continued, “some reactions by individuals to a properly limited Terry encounter, e.g. violence toward a police officer, in and of themselves furnish valid grounds for arrest. Other reactions, such as flight, may often provide the necessary information, in addition to that which the officers already possess, to constitute probable cause.” Id. at 1863 n. 4 (emphasis added). A number of appellate decisions have held precisely that. In United" }, { "docid": "23416262", "title": "", "text": "... [the Texas statute] to detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe appellant was engaged or had engaged in criminal conduct.\" Id. at 53, 99 S.Ct. at 2641. The Court observed “[w]e need not decide whether an individual may be punished for refusing to identify himself in the context of a lawful investigatory stop which satisfies Fourth Amendment requirements.\" Id. at 53 n. 3, 99 S.Ct. at 2641 n. 3. .In Kolender, Lawson brought a declaratory judgment action asserting that a California statute, which made it a crime for a person who loitered or wandered the streets to refuse to produce \"credible and reliable” identification on request of a police officer, was unconstitutional. The Ninth Circuit concluded that the statute was unconstitutional on its face because it violated the vagueness doctrine on three grounds: (1) it violated the Fourth Amendment’s proscription against unreasonable searches and seizures by requiring a person to identify himself in the context of a lawful investigative stop; (2) it contained a vague enforcement standard which en couraged arbitrary ánd discriminatory enforcement; and (3) it failed to give fair and adequate notice of the type of conduct it prohibited. Lawson v. Kolender, 658 F.2d 1362, 1366-67 (9th Cir.1981), aff'd, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). The Supreme Court affirmed on the basis that the statute was unconstitutionally vague because it encouraged arbitrary and discriminatory enforcement. 461 U.S. at 361, 103 S.Ct. at 1860. The Court expressly declined to consider the Ninth Circuit's alternative holding that the statute violated the Fourth Amendment. Id. at 361 n. 10, 103 S.Ct. at 1860 n. 10. . Plaintiff also cites Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979), Davis v. Mississippi, 394 U.S. 721, 727, 89 S.Ct. 1394, 1397-98, 22 L.Ed.2d 676 (1969) and Terry v. Ohio, 392 U.S. 1, 34, 88 S.Ct. 1868, 1886, 20 L.Ed.2d 889 (1968) (White, J., concurring) to support his First Amendment argument. None of these cases hold one has a" }, { "docid": "22659908", "title": "", "text": "a police presence; however, that purpose does not negate Fourth Amendment guarantees. In the absence of any basis for suspecting appellant of misconduct, the balance between the public interest and appellant’s right to personal security and privacy tilts in favor of freedom from police interference. The Texas statute under which appellant was stopped and required to identify himself is designed to advance a weighty social objective in large metropolitan centers: prevention of crime. But even assuming that purpose is served to some degree by stopping and demanding identification from an individual without any specific basis for believing he is involved in criminal activity, the guarantees of the Fourth Amendment do not allow it. When such a stop is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits. See Delaware v. Prouse, supra, at 661. The application of Tex. Penal Code Ann., Tit. 8, § 38.02 (1974), to detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe appellant was engaged or had engaged in criminal conduct. Accordingly, appellant may not be punished for refusing to identify himself, and the conviction is Reversed. APPENDIX TO OPINION OF THE COURT “THE COURT: . . . What do you think about if you stop a person lawfully, and then if he doesn’t want to talk to you, you put him in jail for committing a crime. “MR. PATTON [Prosecutor]: Well first of all, I would question the Defendant’s statement in his motion that the First Amendment gives an individual the right to silence. “THE COURT: . . . I’m asking you why should the State put you in jail because you don’t want to say anything. “MR. PATTON: Well, I think there’s certain interests that have to be viewed. “THE COURT: Okay, I’d like you to tell me what those are. “MR. PATTON: Well, the Governmental interest to maintain the safety and security of the society and the citizens to live in the society, and there are certainly strong Governmental interests in that direction and" }, { "docid": "22725782", "title": "", "text": "U. S. 33, 39 (1885). See also Ashwander v. TV A, 297 U. S. 288, 346-347 (1936) (Brandeis, J., concurring). The remaining issues raised by the parties include whether § 647(e) implicates Fourth Amendment concerns, whether the individual has a legitimate expectation of privacy in his identity when he is detained lawfully under Terry, whether the requirement that an individual identify himself during a Terry stop violates the Fifth Amendment protection against compelled testimony, and whether inclusion of the Terry standard as part of a criminal statute creates other vagueness problems. The appellee also argues that § 647(e) permits arrests on less than probable cause. See Michigan v. DeFillippo, 443 U. S. 31, 36 (1979). Justice Brennan, concurring. I join the Court’s opinion; it demonstrates convincingly that the California statute at issue in this case, Cal. Penal Code Ann. § 647(e) (West 1970), as interpreted by California courts, is unconstitutionally vague. Even if the defect identified by the Court were cured, however, I would hold that this statute violates the Fourth Amendment. Merely to facilitate the general law enforcement objectives of investigating and preventing unspecified crimes, States may not authorize the arrest and criminal prosecution of an individual for failing to produce identification or further information on demand by a police officer. It has long been settled that the Fourth Amendment prohibits the seizure and detention or search of an individual’s person unless there is probable cause to believe that he has committed a crime, except under certain conditions strictly-defined by the legitimate requirements of law enforcement and by the limited extent of the resulting intrusion on individual liberty and privacy. See Davis v. Mississippi, 394 U. S. 721, 726-727 (1969). The scope of that exception to the probable-cause requirement for seizures of the person has been defined by a series of cases, beginning with Terry v. Ohio, 392 U. S. 1 (1968), holding that a police officer with reasonable suspicion of criminal activity, based on articulable facts, may detail! a suspect briefly for purposes of limited questioning and, in so doing, may conduct a brief “frisk” of the suspect" }, { "docid": "20973638", "title": "", "text": "further the war on drugs. The magnitude of the problem caused by drugs in this country is manifest. The effort on the part of drug interdiction agents and officers must, however, be balanced against the intrusion on individual liberty because the Fourth Amendment protects individual rights not public goals. The Fourth Amendment guarantees “the individual’s right to personal security free from arbitrary interference by law officers.” Brown v. Texas, 443 U.S. at 50, 99 S.Ct. at 2640. Thus, to justify a seizure, the officer “must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21, 88 S.Ct. at 1880. “Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result [the Supreme Court] has consistently refused to sanction.” Id. at 22, 88 S.Ct. at 1880-81. The circumstances in this ease are similar to those addressed by the Supreme Court in Brown v. Texas. There, the officers observed two men walking away from each other in an alley in El Paso, Texas. The officers did not see any specific misconduct between the men but stopped the defendant because the situation “looked suspicious.” The only articulable basis for the officers’ “hunch” was that the area was known for its high drug trafficking. When confronted, the defendant refused to identify himself. He was subsequently arrested for violating § 38.20 of the Texas Code which requires one who is “lawfully” stopped to provide identification to an officer when requested. The Supreme Court determined that none of the circumstances preceding the detention of the defendant constituted a reasonable suspicion that he was involved in criminal conduct and held that in the absence of any basis for suspecting the defendant of misconduct, the individual right to personal freedom free from police interference prevailed over the public interest. “When such a stop is not based on objective criteria, the risk of arbitrary and abusive police practice exceeds tolerable limits.” Brown, 443 U.S. at 52, 99 S.Ct. at 2641. Here, as in Brown," } ]

[ { "docid": "23684070", "title": "", "text": "2003, the District Court issued an Amended Order, pursuant to Federal Rule of Criminal Procedure 35(a). In the Amended Order, the District Court found Poellnitz guilty of violating a state law while on supervised release, but contrary to the original Order did not find him guilty of failing to pay full restitution. The Court treated the state law violation as a grade C violation and, pursuant to 18 U.S.C. § 3583(e)(3) and (h), revoked Poellnitz’s supervised release and sentenced him to a term of one month’s imprisonment, to be served in home confinement pursuant to 18 U.S.C. § 3583(e)(4) and § 7B1.3(a)(2) and (c)(1) of the United States Sentencing Guidelines. II. Poellnitz argues there was insufficient evidence to prove that he violated a condition of his supervised release by committing a crime because he pled nolo contendere (rather than guilty) to the crime charged and passed a polygraph test. Poellnitz’s challenge to the propriety of the District Court’s consideration of a nolo contendere plea as proper evidence that he committed a crime in violation of his supervised release is a question that is “essentially legal in nature, [and] we will exercise de novo review.” United States v. Blackston, 940 F.2d 877, 882 (3d Cir.1991) (citing United States v. Ortiz, 878 F.2d 125, 126-27 (3d Cir.1989)). We conclude that the District Court erred as a legal matter in relying on the nolo plea as evidence of commission of a crime. The plain language of 18 U.S.C. § 3583(e)(3) requires a finding by “a preponderance of the evidence that the defendant violated a condition of supervised release.” When the condition is that the defendant not commit a crime, there is no requirement of conviction or even indictment. This Court has emphasized “the broad discretion which is traditionally given to district courts to revoke probation when probation conditions are violated.” United States v. Gordon, 961 F.2d 426, 429 (3d Cir.1992). A “court can revoke probation when it is reasonably satisfied that the probation conditions have been violated, without the government being required to present proof beyond a reasonable doubt that the defendant committed" } ]

[ { "docid": "16873362", "title": "", "text": "in ... Section 3553, the Court finds that this sentence is consistent with the nature, circumstances, and seriousness of the defendant’s violations and his history, characteristics, educational, vocational and corrective needs, as well as the need for just, non-disparate punishment, deterrence, and protection of the public.... We adjourn. App. 55. Defense counsel immediately objected to the imposition of 47 months of supervised release as unsupported by the record and unreasonable based on the facts of the case. The District Court did not address the objection on the record. Clark filed this timely appeal, arguing that the imposition of 47 months of supervised release for his revocation violation was procedurally and substantively unreasonable. II. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We exercise jurisdiction over Clark’s appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1). Clark challenges the imposition of a 47-month term of supervised release for the revocation violation and contends that the District Court committed procedural and substantive error by failing to apply separately the § 3553(a) factors when imposing the new term of supervised release. We review the procedural and substantive reasonableness of a revocation sentence for abuse of discretion. United States v. Doe, 617 F.3d 766, 769 (3d Cir.2010). When considering a procedural challenge to a revocation sentencing hearing, we ask whether the district court has given “rational and meaningful consideration to the relevant § 3553(a) factors.” Id. (quotation marks omitted). If we conclude that the sentence was procedurally sound, our inquiry shifts to substantive reasonableness. To address a defendant’s contention that the sentence imposed was substantively unreasonable, we ask “whether the final sentence, wherever it may lie within the permissible statutory range, was premised upon appropriate and judicious consideration of the relevant factors.” Id. at 770 (quotation marks omitted). A defendant who alleges substantive unreasonableness carries a heavy burden; “we will affirm the sentencing court ‘unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.’ ” Id. (quoting United States v. Tomko, 562 F.3d 558, 568 (3d" }, { "docid": "7455098", "title": "", "text": "over decisions rendered by the Territorial Court pursuant to 48 U.S.C. §§ 1613a(a) and 1613a(d). Accordingly, we have jurisdiction pursuant to 28 U.S.C. § 1291 and 48 U.S.C. § 1613a(c). B. Anders Procedures Simon contends that the Appellate Division erred by applying Anders procedures in the habeas context and by affirming the Territorial Court’s denial of his habeas petition. We review legal conclusions de novo and factual findings for clear error. Pittsburgh League of Young Voters Educ. Fund v. Port Auth. of Allegheny Cnty., 653 F.3d 290, 295 (3d Cir.2011). Under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel may seek to withdraw from representing an indigent criminal defendant on appeal if there are no nonfrivolous issues to appeal. United States v. Marvin, 211 F.3d 778, 779 (3d Cir.2000). We exercise plenary review to determine whether there are any such issues. See Penson v. Ohio, 488 U.S. 75, 80-83 & n. 6, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). We must determine: 1) whether counsel adequately fulfilled the requirements of Third Circuit Local Appellate Rule 109.2(a), and 2) whether an independent review of the record presents any nonfrivolous issues. United States v. Coleman, 575 F.3d 316, 319 (3d Cir.2009). An appeal on a matter of law is frivolous where none of the legal points are arguable on their merits. United States v. Youla, 241 F.3d 296, 301 (3d Cir.2001). 1. The Appellate Division did not err by applying Anders procedures in the habeas context Simon argues that the Appellate Division erred by applying Anders procedures to allow court-appointed appellate counsel to withdraw from post-conviction representation. Simon urges this Court to impose a rule that would require such an attorney to fully brief the merits of an appeal of the denial of a habeas petition, even though there is no constitutional right to counsel in the habeas context. Anders procedures are meant to protect a defendant’s constitutional right to counsel. See Pennsylvania v. Finley, 481 U.S. 551, 554-55, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). Because that right exists on direct appeal but not in" }, { "docid": "23697232", "title": "", "text": "properly imposed its revocation sentence based on the commission of a felony, for which the Sentencing Guidelines permit a twenty-four month revocation sentence. 18 U.S.C. § 3583(e)(3); U.S.S.G. § 7B1.4. Further, the district court correctly ordered the term of imprisonment to run consecutively to the state sentence. U.S.S.G. § 7B1.3(f). Second, Pardue claims the district court should have given him credit for time served under 18 U.S.C. § 3585(b). Indeed, section 3585(b) calls for a defendant to be given such credit. However, this determination, as the district court correctly observed, is properly left to the Bureau of Prisons. United States v. Iversen, 90 F.3d 1340, 1344-45 (8th Cir.1996) (noting the district court did not have authority under 18 U.S.C. § 3585(b) to credit the defendant for time spent in home detention during a previous sentence, and such a claim should first be presented to the Bureau of Prisons). A district court cannot apply section 3585(b) when sentencing, because computing “the credit must occur after the defendant begins his sentence.” United States v. Wilson, 503 U.S. 329, 333, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992). Administrative procedures exist within the Bureau of Prisons to review the Bureau’s failure to credit the time Pardue has served, should such occur. See Rogers v. United States, 180 F.3d 349, 358 (1st Cir.1999) (“Once administrative remedies are exhausted, prisoners may then seek judicial review of any jail-time credit determination, by filing a habeas petition under 28 U.S.C. § 2241.”) (citing Wilson, 503 U.S. at 335, 112 S.Ct. 1351; 28 C.F.R. §§ 542.10-542.16). The district court correctly left this credit calculation for time served issue to the Bureau of Prisons. III. CONCLUSION For the reasons stated, we affirm. . The Honorable Jimm Larry Hendren, Chief Judge, United States District Court for the Western District of Arkansas." }, { "docid": "17867277", "title": "", "text": "U.S.C. § 3585(b) provides: (b) Credit for prior custody. — A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences— (1) as a result of the offense for which the sentence was imposed; or (2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed; that has not been credited against any other sentence. We have no jurisdiction to review this claim. As a threshold matter, the statute authorizes credit for “any time ... that has not been credited against any other sentence.” In McGee’s case, the time between June 7,1994 and November 29, 1994, was spent in the Illinois Department of Corrections serving a sentence for retail theft. Thus the disputed time was credited towards another sentence. More importantly, it is the Attorney General, and not the sentencing court, that computes the credit due under § 3585(b). United States v. Wilson, 503 U.S. 329, 334, 112 S.Ct. 1351, 1354, 117 L.Ed.2d 593 (1992). “Federal regulations have afforded prisoners administrative review of the computation of their credits, see 28 C.F.R. §§ 542.10-542.16 (1990); and prisoners have been able to seek judicial review of these computations after exhausting their administrative remedies. ...” Id. at 335-36, 112 S.Ct. at 1355 (citations omitted). See also United States v. Jones, 34 F.3d 495, 499 (7th Cir.1994) (no jurisdiction to review credit for prior custody on direct appeal because the issue is not ripe). Accordingly, we hold that this court lacks jurisdiction to review any computation of credit at this time. C. Review of Sentence Within the Revocation Range McGee also contends that the district court committed plain error in sentencing him at the top of the revocation range of U.S.S.G. § 7B1.4(a), p.s. The government responds that we lack jurisdiction to review sentences within the appropriate guidelines range, citing United States v. Solis, 923 F.2d 548, 551 (7th Cir.1991). Although the government’s position is correct with respect to a" }, { "docid": "18255146", "title": "", "text": "in jail on a state conviction against his federal sentence pursuant to 18 U.S.C. § 3585(b). Tindall also contends that if the district court properly-exercised such authority, the court gave insufficient credit for time served, because it applied an incorrect starting date for his time in state custody. This latter argument is based on the court’s overruling of Tindall’s objection to the presentence report, which stated that Tindall began his time in state custody on August 11, 2004. Tindall asserts that he began to serve the state sentence on April 21, 2004. Section 3585(b) permits a defendant to receive credit toward a federal sentence for any time spent in official detention, prior to the date the federal sentence commences, if the detention was a “result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed.” 18 U.S.C. § 3583(b)(2). Tindall is correct that the Attorney General, through the Bureau of Prisons, has the responsibility for computing a sentencing credit under section 3585(b). United States v. Wilson, 503 U.S. 329, 334-35, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992). The district court, however, did not purport to compute his sentence; the court simply overruled Tindall’s objections to the PSR concerning the date that he began to serve time in state custody. Accordingly, there was no error with respect to section 3585(b). Even if the date listed in the PSR was wrong, the district court’s determination of the date was irrelevant to any material issue resolved at sentencing. The Bureau of Prisons is responsible for computing the sentence credit after the defendant has begun serving his sentence. Wilson, 503 U.S. at 335, 112 S.Ct. 1351; see also United States v. Moore, 978 F.2d 1029, 1031 (8th Cir.1992). Prisoners are entitled to administrative review of the computation of their credits, 28 C.F.R. §§ 542.10-542.16, and after properly exhausting these administrative remedies, an inmate may seek judicial review through filing a habeas corpus petition under 28 U.S.C. § 2241. Wilson, 503 U.S. at 335, 112 S.Ct. 1351; United States v. Pardue, 363 F.3d" }, { "docid": "22037823", "title": "", "text": "court could be justified under Chapter 7 of the Sentencing Guidelines. That chapter consists of a series of policy statements relating to violations and revocation of probation and supervised release which are not binding on the sentencing court. United States v. Hensley, 36 F.3d 39, 42 (8th Cir.1994); United States v. Levi, 2 F.3d 842, 845 (8th Cir.1993); see also U.S.S.G. Chapter 7, Part 1 (Sentencing Commission has chosen to adopt policy statements only in this area; revocation guidelines to be issued after evaluation and comment on the policy statements). The governing law in this area is statutory. 18 U.S.C. § 3583(e)(3); Hensley, 36 F.3d at 42; Levi, 2 F.3d at 845. A sentence imposed within the lirnits of § 3583(e) will not be disturbed “absent an abuse of discretion.” United States v. Graves, 914 F.2d 159, 161 (8th Cir.1990). The maximum sentence which the district court could have imposed here is two years, because the offense for which Grimes was convicted was a class C felony. 18 U.S.C. §§ 3583(e)(3) & 3559(a). Given the number of violations committed by Grimes and their nature, we cannot say that the district court abused its discretion by imposing a sentence of 12 months. Grimes also contends that the district court erred in finding that he had violated the condition prohibiting use of controlled substances. He objects that the Fretthold affidavit was irrelevant because it did not show the testing procedures used for his test sample. Without that affidavit, Grimes argues, the evidence does not prove that he tested positive for cocaine. We review the district court’s admission of evidence for abuse of discretion. United States v. Rogers, 939 F.2d 591, 594 (8th Cir.), cert. denied, 502 U.S. 991, 112 S.Ct. 609, 116 L.Ed.2d 632 (1991). At revocation hearings “material that would not be admissible in an adversary criminal trial” may be received where appropriate. United States v. Bell, 785 F.2d 640, 642 (8th Cir.1986) (quoting Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972)); see also Fed.R.Crim.P. 32.1 advisory committee’s note. A relevant factor in determining" }, { "docid": "23515990", "title": "", "text": "III.Credit for Time Served The relevant statute regarding credit for time served is 18 U.S.C. § 3585(b), which states as follows: (b) Credit for prior custody. — A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences— (1) as a result of the offense for which the sentence was imposed; or (2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed; that has not been credited against another sentence. In construing 18 U.S.C. § 3585(b), the Supreme Court has held that the Attorney General through the Bureau of Prisons, as opposed to the district courts, is authorized to compute sentence credit awards after sentencing. United States v. Wilson, 503 U.S. 329, 333-35, 112 S.Ct. 1351, 1354-55, 117 L.Ed.2d 593 (1992). As a result, “a federal prisoner dissatisfied with computation of his sentence must pursue the administrative remedy available through the federal prison system before seeking judicial review of his sentence.” United States v. Flanagan, 868 F.2d 1544, 1546 (11th Cir.1989) (interpreting § 3585(b)’s predecessor, § 3568). “A claim for credit for time served is brought under 28 U.S.C. § 2241 after the exhaustion of administrative remedies.” United States v. Nyhuis, 211 F.3d 1340, 1345 (11th Cir.2000). “Exhaustion of administrative remedies is jurisdictional.” Gonzalez v. United States, 959 F.2d 211, 212 (11th Cir.1992) (addressing denial of a § 2241 petition). After reviewing the record, we conclude that Williams has failed to exhaust his administrative remedies. Until Williams exhausts his administrative remedies, this issue is not ripe for judicial review. Accordingly, we dismiss this issue. IV.U.S.S.G. § 7BU(a) The Sentencing Guidelines established a table setting forth a range of recommended sentences of imprisonment upon the revocation of supervised release. U.S.S.G. § 7B1.4(a). The two variables that are factored into the table’s grid are the grade of the violation and the individual’s criminal history category. Id. The table’s range of imprisonment reflects the policy choice of recommending" }, { "docid": "22845792", "title": "", "text": "Order and three days later issued an Amended Judgment Order sentencing Joseph Dees to three consecutive 24 month prison terms. Joseph Dees now appeals. II. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We exercise jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1), which applies to final sentences imposed in violation of law. See United States v. Cooper, 437 F.3d 324, 327-28 (3d Cir.2006). III. Dees presents five issues on appeal. They are: 1) Whether the District Court had statutory discretion under 18 U.S.C. § 3584(a) to impose consecutive sentences upon revocation of concurrent terms of supervised release based upon the same violation conduct, or whether 18 U.S.C. § 3583(e)(3) removes this discretion; 2) Whether the 72-month sentence, which exceeds Dees’ initial sentence by 21 months, was “unreasonable”; 3) Whether the District Court violated the Double Jeopardy Clause when it revoked Dees’ three concurrent terms of supervised release and required him to serve three consecutive terms in prison; 4) Whether the District Court violated Dees’ Fifth and Sixth Amendment rights under Apprendi, Blakely, and Booker by requiring Dees to serve three consecutive terms in prison; and 5) Whether the District Court violated the Fifth Amendment’s Due Process Clause when it found a violation of Dees’ supervised release by a preponderance of the evidence standard rather than a reasonable doubt standard and imposed three consecutive terms in prison. A. The first issue is whether the District Court had statutory discretion under 18 U.S.C. § 3584(a) to impose consecutive sentences upon revocation of concurrent terms of supervised release based upon the same violation conduct. We exercise plenary review of the legal issue of statutory construction. See Lieberman v. Cambridge Partners, L.L.C., 432 F.3d 482, 486 (3d Cir.2005). Section 3584(a) states in relevant part that: If multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively, except that the terms may not" }, { "docid": "22815301", "title": "", "text": "release, it has the discretion to revoke the previous sentence and impose a term of imprisonment. See 18 U.S.C. § 3583(e)(3); United States v. Arbizu, 431 F.3d 469, 470 (5th Cir.2005). The district court may impose any sentence that falls within the appropriate statutory maximum term of imprisonment allowed for the revocation sentence. See § 3583(e)(3). In so doing, the district court is directed to consider the factors enumerated in 18 U.S.C. § 3553(a), including the non-binding policy statements found in Chapter Seven of the Sentencing Guidelines Manual. § 3583(e); see United States v. Gonzalez, 250 F.3d 923, 929-30 (5th Cir.2001); United States v. Mathena, 23 F.3d 87, 90, 92 (5th Cir.1994). This court reviews the district court’s interpretation and application of the Guidelines de novo. See United States v. Villanueva, 408 F.3d 193, 202 (5th Cir.2005); Mathena, 23 F.3d at 89. Prior to Booker, this court would uphold a sentence imposed “after revocation of supervised release unless it [was] in violation of law or [was] plainly unreasonable.” United States v. Stiefel, 207 F.3d 256, 259 (5th Cir.2000) (internal quotation marks omitted); see 18 U.S.C. § 3742(e)(1), (4). In Booker, however, the Supreme Court excised § 3742(e) and directed appellate courts to review for unreasonableness. United States v. Booker, 543 U.S. 220, 260-62, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); see also Gall v. United States, — U.S. -, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007) (“[A]ppellate review of sentencing decisions is limited to determining whether they are ‘reasonable.’ ”). This court has declined to resolve which standard of review applies to revocation sentences after Booker, instead, this court has reviewed revocation cases under (a) both the “plainly unreasonable” and the Booker unreasonableness standards of review or (b) the more exacting Booker unreasonableness standard. See United States v. Hinson, 429 F.3d 114, 119-20 (5th Cir.2005). We again decline to resolve this issue because, as stated below, we conclude that McKinney’s sentence was neither unreasonable nor plainly unreasonable. As a final preliminary issue, the Government argues that we should review McKinney’s objection to the district court’s application of criminal history" }, { "docid": "16873365", "title": "", "text": "violates those conditions, the court may, after considering the same § 3553(a) factors relevant to the initial term of supervised release, revoke or modify the defendant’s supervised release. 18 U.S.C. § 3583(e). Even though § 3583(e) omits some of the § 3553(a) factors, such as 18 U.S.C. § 3553(a)(2)(A) (directing the court to consider the seriousness of the offense), consideration of those omitted factors is not prohibited. United States v. Young, 634 F.3d 233, 240-41 (3d Cir.2011). If the court revokes supervised release and sentences the defendant to a new term of imprisonment, it may include a new term of supervised release as well. 18 U.S.C. § 3583(h) (“subsection (h)”). Though subsection (h) does not specify a procedure for reimposition of supervised release, we hold that sentencing courts are to consider those § 3553(a) factors listed in 18 U.S.C. § 3583(c), the provision governing imposition of the initial term of supervised release. See United States v. Santiago-Rivera, 594 F.3d 82, 84 (1st Cir.2010) (“As subsection (h) does not list the factors to be considered in imposing a term of supervised release as part of a revocation sentence, it is a reasonable inference that the factors are the same as those to be considered in imposing an initial term of supervised release.”). We turn now to the issue of whether the District Court was obligated to conduct two § 3553(a) analyses: one with respect to Clark’s 13-month term of imprisonment and one with respect to Clark’s 47-month term of supervised release. The Court of Appeals for the Tenth Circuit has considered this question and held that a district court did not err when it conducted a single § 3553(a) analysis for both portions of a defendant’s post-revocation sentence. United States v. Penn, 601 F.3d 1007, 1011-12 (10th Cir.2010). In Penn, the sentencing judge had discussed several of the § 3553(a) factors and “stated his reasons for imposing both reimprisonment and supervised release.” Id. at 1012. The defendant challenged the imposition of supervised release as part of the revocation sentence, arguing that the district court erroneously failed to discuss the § 3553(a)" }, { "docid": "13477392", "title": "", "text": "for resolution. Credit for time served is indeed á matter which generally falls within the province of the Bureau of Prisons under 18 U.S.C. § 3585(b). See United States v. Wilson, 503 . U.S. 329, 332-36, 112 S.Ct. 1351, 1354-55, 117 L.Ed.2d 593 (1992). Nevertheless, we see no reason why the principles underlying Wilson would apply to this case. Here, Drake seeks to invoke a Guidelines provision to reduce his federal sentence. The applicability of a Guidelines provision is a question for the sentencing court. See United States v. Kiefer, 20 F.3d 874, 876 (8th Cir.1994) (“[W]e find nothing in Wilson suggesting that the Attorney General’s authority under § 3585(b) limits a sentencing court’s power to apply § 5G1.3 of the Guidelines.”). Indeed, as the Court in Wilson explained, “[a]fter a District Court sentences a federal offender, the Attorney General, through the Bureau of Prisons, has the responsibility for administering the sentence.” Wilson, 503 U.S. at 335, 112 S.Ct. at 1355 (emphasis added). Such language presumes that the district court will first sentence the offender — applying the relevant Sentencing Guidelines — before credit determinations shall be made by the Bureau of Prisons. Application of section 5G1.3(b) is a matter for the court, not the Bureau, to decide. III As to the merits, 18 U.S.C. § 924(e)(1) requires that a defendant with three prior violent felonies who violates section 922(g) be “imprisoned not less than fifteen years.” Yet if Drake’s interpretation is correct, the federal sentence imposed will fall below this mandatory minimum. We thus must determine whether Drake’s state sentence constitutes “imprisonment” for the purposes of 18 U.S.C. § 924(e)(1) such that the total sentence served will satisfy the mandatory minimum. The Eighth Circuit confronted precisely this issue in United States v. Kiefer, 20 F.3d 874 (8th Cir.1994), and its reasoning is persuasive. The Kiefer court began by recognizing that, in certain circumstances, time served prior to sentencing can reduce the ultimate sentence imposed under 18 U.S.C. § 924(e)(1). For example, a defendant who has spent time in “official detention” prior to the commencement of a section 924(e)(1) mandatory" }, { "docid": "23515989", "title": "", "text": "circuit courts of appeals have concluded that the caps apply in the aggregate. Accordingly, we must vacate Williams’s sentence and remand this case for the court to resentence with the new sentence not to exceed 364 days. II. First Revocation of Supervised Release “In a criminal case, a defendant’s notice of appeal must be filed in the district court within 10 days after ... (i) the entry of either the judgment or the order being appealed .... ” Fed. R.App. P. 4(b)(1)(A)®. “The timely filing of a notice of appeal is a mandatory prerequisite to the exercise of appellate jurisdiction.” United States v. Grant, 256 F.3d 1146, 1150 (11th Cir.2001) (quotation omitted). A review of the record demonstrates that Williams never filed a notice of appeal from the district court’s amended judgment as to his first revocation of supervised release. Therefore, we do not have jurisdiction to consider whether the sentence imposed after Williams’s first revocation of supervised release was in error. Accordingly, we must dismiss this part of the appeal for lack of jurisdiction. III.Credit for Time Served The relevant statute regarding credit for time served is 18 U.S.C. § 3585(b), which states as follows: (b) Credit for prior custody. — A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences— (1) as a result of the offense for which the sentence was imposed; or (2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed; that has not been credited against another sentence. In construing 18 U.S.C. § 3585(b), the Supreme Court has held that the Attorney General through the Bureau of Prisons, as opposed to the district courts, is authorized to compute sentence credit awards after sentencing. United States v. Wilson, 503 U.S. 329, 333-35, 112 S.Ct. 1351, 1354-55, 117 L.Ed.2d 593 (1992). As a result, “a federal prisoner dissatisfied with computation of his sentence must pursue the administrative remedy available through" }, { "docid": "19504978", "title": "", "text": "the boy that his age was not a problem, as long as the boy did not tell the police. But the \"boy\" was an FBI agent. So when Holena arrived at the arranged meeting spot in a park, he was arrested and charged with attempting to entice a minor to engage in sexual acts. Holena pleaded guilty. He was sentenced to ten years' imprisonment and a lifetime of supervised release. As a special condition of that supervised release, he was forbidden to use the internet without his probation officer's approval. He had to submit to regular searches of his computer and home. And he had to let the probation office install monitoring and filtering software on his computer. After serving his prison sentence, Holena violated the terms of his supervised release-twice. The first time, he went online to update social-media profiles and answer emails. The second time, he logged into Facebook without approval, then lied about it to his probation officer. After each violation, the court sentenced him to nine more months' imprisonment and reimposed the special conditions. At Holena's latest revocation hearing, the judge imposed another condition, forbidding him to possess or use any computers, electronic communications devices, or electronic storage devices. Holena objected to this lifetime ban. II. JURISDICTION AND STANDARD OF REVIEW The District Court had jurisdiction under 18 U.S.C.§§ 3231 and 3583(e). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review revocation of supervised release for abuse of discretion. United States v. Bagdy , 764 F.3d 287, 290 (3d Cir. 2014). We insist on \"some evidence\" that the special conditions imposed are \"tangibly related\" to the goals of supervised release. United States v. Voelker , 489 F.3d 139, 144 (3d Cir. 2007) ; see 18 U.S.C. § 3583(d). To justify special conditions, district courts must find supporting facts. United States v. Thielemann , 575 F.3d 265, 272 (3d Cir. 2009). We may affirm if we can \"ascertain any viable basis\" in the record for the restriction. Id. (quoting Voelker , 489 F.3d at 144 ). Here, we cannot. III. THE" }, { "docid": "22254677", "title": "", "text": "prohibited him from drinking alcohol. At his revocation hearing before the district court, Polihonki pled guilty to those violations. Prior to the revocation hearing, a probation officer submitted to the district court a Supervised Release Violation Report (SRVR), which recommended revocation of Polihonki’s term of supervised release and a new term of imprisonment. Polihonki’s Guidelines range was calculated to be 5 to 11 months of imprisonment, with a recommended sentence of 11 months. The district court revoked Polihonki’s supervised release pursuant to 18 U.S.C. § 3583(e)(3) and sentenced him to 13 months in prison, with orders for alcohol-abuse and mental-health counseling, to be followed by 22 months of supervised release accompanied by ongoing alcohol-abuse treatment. Poli-honki filed a timely appeal of his sentence. II. ANALYSIS A. Standard of review The district court may revoke a defendant’s term of supervised release and require the defendant to serve a new term of imprisonment pursuant to 18 U.S.C. § 3583(e). In this circuit, “[sentences imposed following revocation of supervised release are to be reviewed under the same abuse of discretion standard that we apply to sentences imposed following conviction.” United States v. Bolds, 511 F.3d 568, 578 (6th Cir.2007). The district court’s sentencing determination is reviewed “under a deferential abuse-of-discretion standard” for reasonableness, which has both a procedural and a substantive component. Gall v. United States, — U.S.-, 128 S.Ct. 586, 591, 598, 169 L.Ed.2d 445 (2007); see also United States v. Carter, 510 F.3d 593, 600 (6th Cir.2007). We must first ensure that the district court committed no procedural error in sentencing the defendant. Id. at 597; United States v. Webb, 403 F.3d 373, 383 (6th Cir.2005). A district court necessarily abuses its sentencing discretion if it commit[s][a] 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, 128 S.Ct. at 597. If the district court’s sentencing decision is procedurally" }, { "docid": "22081759", "title": "", "text": "sentencing guideline, as in the case of a revocation sentence, we review to determine whether the sentence was plainly\" unreasonable. See 18 U.S.C. § 3742(e)(4). A district court’s decision' to sentence a defendant to a longer term than suggested by Chapter 7 is reviewed for an abuse of discretion. See United States v. Martin, 371 F.3d 446, 449 (8th Cir.2004) (rejecting argument that under PROTECT Act de novo standard of review applies to a revocation sentence exceeding the suggested range in U.S.S.G. § 7B1.4(a)). Congress has set standards for revocation of supervised release. A district court may return a defendant to prison upon finding by a preponderance of the evidence that any condition of supervised release was violated. 18 U.S.C. § 3583(e). The district court should consider the factors listed in 18 U.S.C. § 3553(a) in determining the length of the term and the conditions of supervised release. 18 U.S.C. §§ 3583(c) & (e). These factors include: the nature and circumstances of the of fense; the need for the sentence to provide just punishment for the offense, deter criminal conduct, protect the public, and provide the defendant with educational or vocational training, medical care, or other treatment; the applicable category of offense and category of defendant in the guidelines or policy statements issued by the Sentencing Commission; any pertinent policy statement issued by the Sentencing Commission; avoidance of unwarranted disparities among similar defendants; and victim restitution. See 18 U.S.C. §§ 3553(a)(1)-(7). We have required that courts consider the policy statements in Chapter 7 when sentencing a violator of supervised release and have concluded that the suggested ranges in U.S.S.G. § 7B1.4(a) are only advisory. See United States v. Hensley, 36 F.3d 39, 42 (8th Cir.1994). There are “no binding guidelines addressing the sentence for a violation of a condition of supervised release, only a policy statement about a court’s options in such a situation.” United States v. Oliver, 931 F.2d 463, 465 (8th Cir.1991). No circuit court has considered the Chapter 7 policy statements binding on district courts, and we have distinguished these policy statements from the federal sentencing guidelines" }, { "docid": "16873364", "title": "", "text": "Cir.2009) (en banc)). III. A. Clark asserts that procedural error arose from the District Court’s failure to adhere to the familiar three-step sentencing process. A sentencing court must (1) calculate the advisory Guidelines range, (2) formally rule on any departure motions and state how those rulings affect the advisory range, and (3) exercise its discretion pursuant to the factors set forth in § 3553(a). United States v. Lofink, 564 F.3d 232, 237-38 (3d Cir.2009). In a revocation hearing, however, the court must also adhere to the statutory requirements set forth in 18 U.S.C. § 3583. See Doe, 617 F.3d at 771-72; United States v. Bungar, 478 F.3d 540, 543-44 (3d Cir.2007). Section 3583 controls post-conviction and post-revocation supervised release. When imposing a defendant’s initial term of imprisonment, a district court may, after considering certain factors set forth in § 3553(a), include a term of supervised release. 18 U.S.C. §§ 3583(a), 3583(c). A defendant serving a term of supervised release must adhere to certain conditions, both mandatory and discretionary. See id. § 3583(d). If the defendant violates those conditions, the court may, after considering the same § 3553(a) factors relevant to the initial term of supervised release, revoke or modify the defendant’s supervised release. 18 U.S.C. § 3583(e). Even though § 3583(e) omits some of the § 3553(a) factors, such as 18 U.S.C. § 3553(a)(2)(A) (directing the court to consider the seriousness of the offense), consideration of those omitted factors is not prohibited. United States v. Young, 634 F.3d 233, 240-41 (3d Cir.2011). If the court revokes supervised release and sentences the defendant to a new term of imprisonment, it may include a new term of supervised release as well. 18 U.S.C. § 3583(h) (“subsection (h)”). Though subsection (h) does not specify a procedure for reimposition of supervised release, we hold that sentencing courts are to consider those § 3553(a) factors listed in 18 U.S.C. § 3583(c), the provision governing imposition of the initial term of supervised release. See United States v. Santiago-Rivera, 594 F.3d 82, 84 (1st Cir.2010) (“As subsection (h) does not list the factors to be considered in" }, { "docid": "21159770", "title": "", "text": "jurisdiction over the final judgment and sentence of the district court pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We review de novo “the legality of a sentence, including a sentence imposed pursuant to revocation of a term of supervised release.” United States v. Pla, 345 F.3d 1312, 1313 (11th Cir.2003) (quotations and citation omitted). We review issues of statutory interpretation de novo. United States v. Castro, 455 F.3d 1249, 1251 (11th Cir.2006). DISCUSSION Mazarky challenges the sentence imposed following the second revocation, arguing that, under 18 U.S.C. § 3583, the new term of supervised release should have been reduced by the aggregate length of imprisonment imposed in both revocations. Subsections (e) and (h) of 18 U.S.C. § 3583 govern the imposition of a new term of supervised release following the revocation of a prior term. Subsection (e) provides, in relevant part, that: [T]he court may ... revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release without credit for time previously served on postrelease supervision ... except that a defendant whose term is revoked under this paragraph may not be required to serve more than ... 2 years in prison if such offense is a class C or D felony .... 18 U.S.C. § 3583(e)(3). Subsection (h) permits multiple terms of supervised release: When a term of supervised release is revoked and the defendant is required to serve a term of imprisonment that is less than the maximum term of imprisonment authorized under subsection (e)(3), the court may include a requirement that the defendant be placed on a term of supervised release after imprisonment. The length of such a term of supervised release shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release. Id. at § 3583(h). In Williams, this court construed subsection" }, { "docid": "16873363", "title": "", "text": "factors when imposing the new term of supervised release. We review the procedural and substantive reasonableness of a revocation sentence for abuse of discretion. United States v. Doe, 617 F.3d 766, 769 (3d Cir.2010). When considering a procedural challenge to a revocation sentencing hearing, we ask whether the district court has given “rational and meaningful consideration to the relevant § 3553(a) factors.” Id. (quotation marks omitted). If we conclude that the sentence was procedurally sound, our inquiry shifts to substantive reasonableness. To address a defendant’s contention that the sentence imposed was substantively unreasonable, we ask “whether the final sentence, wherever it may lie within the permissible statutory range, was premised upon appropriate and judicious consideration of the relevant factors.” Id. at 770 (quotation marks omitted). A defendant who alleges substantive unreasonableness carries a heavy burden; “we will affirm the sentencing court ‘unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.’ ” Id. (quoting United States v. Tomko, 562 F.3d 558, 568 (3d Cir.2009) (en banc)). III. A. Clark asserts that procedural error arose from the District Court’s failure to adhere to the familiar three-step sentencing process. A sentencing court must (1) calculate the advisory Guidelines range, (2) formally rule on any departure motions and state how those rulings affect the advisory range, and (3) exercise its discretion pursuant to the factors set forth in § 3553(a). United States v. Lofink, 564 F.3d 232, 237-38 (3d Cir.2009). In a revocation hearing, however, the court must also adhere to the statutory requirements set forth in 18 U.S.C. § 3583. See Doe, 617 F.3d at 771-72; United States v. Bungar, 478 F.3d 540, 543-44 (3d Cir.2007). Section 3583 controls post-conviction and post-revocation supervised release. When imposing a defendant’s initial term of imprisonment, a district court may, after considering certain factors set forth in § 3553(a), include a term of supervised release. 18 U.S.C. §§ 3583(a), 3583(c). A defendant serving a term of supervised release must adhere to certain conditions, both mandatory and discretionary. See id. § 3583(d). If the defendant" }, { "docid": "23697231", "title": "", "text": "Cir.2000) (in ruling on suspension of defendant’s supervised release, holding “[w]hether the district court had the authority to impose the controverted tolling condition in the exercise of its discretion is a legal question subject to de novo review”). Pardue makes two arguments regarding the sentence imposed upon revocation of his supervised release. First, Pardue argues the district court erred in sentencing him to twenty-four months in prison. Second, Pardue argues he should receive credit for time already served. Because Pardue did not present the first argument to the district court, we are limited to a plain error review. United States v. Brown, 203 F.3d 557, 558 (8th Cir.2000) (citing United States v. Montanye, 996 F.2d 190, 192 (8th Cir.1993) (en banc)). Pardue bases this first argument on his assertion that the state convictions should be dismissed due to the IADA violations. Because we have concluded the IADA does not apply to Pardue’s situation, any argument the district court erred in revoking Pardue’s supervised release based on the state convictions is without merit. The district court properly imposed its revocation sentence based on the commission of a felony, for which the Sentencing Guidelines permit a twenty-four month revocation sentence. 18 U.S.C. § 3583(e)(3); U.S.S.G. § 7B1.4. Further, the district court correctly ordered the term of imprisonment to run consecutively to the state sentence. U.S.S.G. § 7B1.3(f). Second, Pardue claims the district court should have given him credit for time served under 18 U.S.C. § 3585(b). Indeed, section 3585(b) calls for a defendant to be given such credit. However, this determination, as the district court correctly observed, is properly left to the Bureau of Prisons. United States v. Iversen, 90 F.3d 1340, 1344-45 (8th Cir.1996) (noting the district court did not have authority under 18 U.S.C. § 3585(b) to credit the defendant for time spent in home detention during a previous sentence, and such a claim should first be presented to the Bureau of Prisons). A district court cannot apply section 3585(b) when sentencing, because computing “the credit must occur after the defendant begins his sentence.” United States v. Wilson, 503 U.S." }, { "docid": "11833295", "title": "", "text": "that the district court did not adequately consider his health condition and that recent changes in the Sentencing Guidelines warrant a reduction in his sentence. We review a sentence imposed by the district court for an abuse of discretion, and our review is limited to determining whether the sentence is unreasonable. United States v. Tyson, 413 F.3d 824, 825 (8th Cir.2005); see also Gall v. United States, — U.S. -, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007) (stating that “appellate review of sentencing decisions is limited to determining whether they are ‘reasonable’ ”). A court abuses its discretion and imposes an unreasonable sentence when it “fails to consider a relevant factor that should have received significant weight; ... gives significant weight to an improper or irrelevant factor; or ... con siders only the appropriate factors but in weighing those factors commits a clear error of judgment.” United States v. Rouillard, 474 F.3d 551, 556 (8th Cir.2007) (quoting United States v. Haack, 403 F.3d 997, 1004 (8th Cir.2005)). “[T]he court has a range of choice, and ... its decision will not be disturbed as long as it stays within that range and is not influenced by any mistake of law.” Id. (quoting Haack, 403 F.3d at 1004). Following the revocation of supervised release, the district court has the discretion to “require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense.” United States v. Ahlemeier, 391 F.3d 915, 919 (8th Cir.2004) (quoting 18 U.S.C. § 3583(e)(3)). In determining an appropriate sentence, the district court must consider the factors listed in 18 U.S.C. § 3553(a). United States v. White Face, 383 F.3d 733, 737 (8th Cir.2004). 1. Variance Based on Health Concerns Charles argues that the district court, in its consideration of the § 3553(a) factors, placed, great weight on his criminal history and did not adequately consider his health. We conclude that the district court did not err in assessing the § 3553(a) factors. Charles’s long criminal history and the need for the sentence to promote respect for the" } ]

[ { "docid": "23627729", "title": "", "text": "WALLACE, Circuit Judge: Antoine appeals from his conviction for bank robbery, 18 U.S.C. § 2113(a), alleging violations of 18 U.S.C. § 3161(c) (Speedy Trial Act) and 28 U.S.C. § 753(b) (Court Reporter Act), as well as auxiliary constitutional violations. He also alleges a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and an infringement of due process as a result of an unreasonable delay in the processing of his appeal. The district court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm in part and vacate and remand in part. I Antoine was indicted on October 23, 1985, and convicted following a two-day jury trial on March 3-4, 1986. On March 12, Antoine’s ex-wife, acting on behalf of Antoine, requested a copy of the reporter’s transcript, and paid the full amount necessary to secure it. Despite repeated motions filed by Antoine’s counsel and repeated orders entered by the district court directing the transcripts to be prepared, no transcripts had been filed and no explanation had been given by the court reporter as of July 11, 1988. On that date, the reporter finally informed the court that she was unable to locate her trial notes and tapes. On August 9, 1988, our clerk of court directed the district court to prepare a reconstruction of the trial proceedings pursuant to Fed.R.App.P. 10(c); this order was confirmed in our order dated August 29. On February 16, 1989, Antoine’s counsel filed a rule 10(c) statement with the district court, but stated that the 10(c) reconstruction of the record was inadequáte. The district judge ordered a hearing for April 29, 1989. In the meantime, portions of the reporter’s notes were located. From these, a partial transcript was produced by a substitute court reporter and filed on May 31, 1989. Antoine objected, pointing out numerous omissions and garbled testimony, and moved to vacate his conviction. The district court denied this motion on August 11, 1989, and ordered Antoine to proceed under either the partial" } ]

[ { "docid": "22432190", "title": "", "text": "and make an appropriate record for review. 2. Appropriate remedies If the district court finds that a petitioner’s due process rights have been violated, it must then address the matter of a remedy. We agree with the district court’s conclusion that any petitioner whose direct criminal appeal has now been decided and whose conviction has been affirmed is not entitled to habeas relief based solely on delay in adjudicating his or her appeal, unless the petitioner can show actual prejudice to the appeal, itself, arising from the delay. See Muwwakkil v. Hoke, 968 F.2d 284, 285 (2d Cir.) (holding that once petitioner’s state conviction was affirmed, he was not entitled to release unless he could show a reasonable probability that, but for the appellate delay, his appeal would have been decided differently), cert. denied, — U.S. -, 113 S.Ct. 664, 121 L.Ed.2d 589 (1992). Only when appellate delay “prejudiced [the petitioner’s] due process rights so as to make his confinement constitutionally deficient,” would habeas relief based on appellate delay be appropriate for a petitioner whose conviction has been affirmed. Diaz v. Henderson, 905 F.2d 652, 653 (2d Cir.1990). An untainted affirmance of a petitioner’s state appeal while his habeas petition is pending makes clear that the petitioner was confined pursuant to a valid judgment of conviction throughout the period of delay. The affirmance establishes that if the delay had not occurred and petitioner’s due process right to a timely appeal had been fully satisfied, he would have been subject to exactly the same term of confinement. Because the due process violation did not result in an illegal confinement, it cannot justify granting the habeas remedy of unconditional release. Cody, 936 F.2d at 720. We also agree with the district court that a petitioner whose conviction the state court has reversed with prejudice to retrial is not entitled to federal habeas relief. Because the state court has set such a petitioner’s release in motion, federal habeas relief is neither necessary nor available. “[A]bsent absolute or qualified immunity or other appropriate defenses,” a petitioner for whom habeas relief is not available may" }, { "docid": "22603316", "title": "", "text": "Justice Marshall delivered the opinion of the Court. This case presents the question whether a federal appellate court has jurisdiction over a party who was not specified in the notice of appeal in accordance with Federal Rule of Appellate Procedure 3(c). I Petitioner Jose Torres is one of 16 plaintiffs who intervened in an employment discrimination suit against respondent Oakland Scavenger Co. (hereafter respondent) after receiving notice of the action pursuant to a settlement agreement between respondent and the original plaintiffs. In their complaint, the intervenors purported to proceed not only on their own behalf, but also on behalf of all persons similarly situated. On August 31, 1981, the District Court for the Northern District of California dismissed the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim warranting relief. 4 Record, Doc. No. 87. A class had not been certified at the time of the dismissal. On September 29, 1981, a notice of appeal was filed in the Court of Appeals for the Ninth Circuit. The Court of Appeals reversed the District Court’s dismissal and remanded the case for further proceedings. Bonilla v. Oakland Scavenger Co., 697 F. 2d 1297 (1982). Both the notice of appeal and the order of the Court of Appeals omitted petitioner’s name. It is undisputed that the omission in the notice of appeal was due to a clerical error on the part of a secretary employed by petitioner’s attorney. On remand, respondent moved for partial summary judgment on the ground that the prior judgment of dismissal was final as to petitioner by virtue of his failure to appeal. The District Court granted respondent’s motion. App. to Pet. for Cert. B-l, Civ. Action No. C 75-0060 CAL (ND Cal., Oct. 30, 1985). The Court of Appeals affirmed, judgment order reported at 807 F. 2d 178 (1986), holding that “[u]nless a party is named in the notice of appeal, the appellate court does not have jurisdiction over him.” App. to Pet. for Cert. A-4, citing Farley Transportation Co. v. Santa Fe Trail Transportation Co., 778 F. 2d 1365, 1368 (CA9" }, { "docid": "9411184", "title": "", "text": "similar question of coerced confession to the Arizona Superior Court. The order was apparently not appealed and was accepted and acted upon by the Arizona courts. See Carter v. Eyman, 281 F.Supp. 776 (D.Ariz.1968). TRASK, Circuit Judge (dissenting): I respectfully dissent from the opinion of the majority in this case. Petitioner’s original application for a writ of habeas corpus asserted as ground for release, the introduction against him in his state criminal trial for murder a confession which was alleged to have been obtained by coercion, fraud and threats. The district court ordered the respondent to produce a transcript of petitioner’s trial, but the State Attorney General was unable to do so because the court reporter’s notes were lost. The district judge then deferred action on the petition until petitioner could file in the Arizona state court a motion for a delayed appeal and hearing to create a transcript substitute. Petitioner’s appropriate motion before the Arizona Supreme Court was denied without a hearing. The district court then filed the order the propriety of which is in question in this appeal. That order gave the State four alternatives: (1) hold the necessary hearing to create a substitute transcript; (2) grant petitioner a delayed appeal in the process of which a substitute transcript would be created; (3) release petitioner from custody; or (4) set aside petitioner’s conviction and retry him. The vice I find in the district court’s order is the alternative which requires the state to release the prisoner if none of the other alternatives is elected. The state has already denied a petition for a delayed appeal. It has indicated by its denial of applications for habeas corpus (three in number) that correctly or incorrectly it has determined that the conviction was in all respects according to law and that it was not in violation of the Constitution and laws of the United States or of the State of Arizona. It has also indicated rather clearly that it intends to take no further action. The remaining alternative is release. The present petition was one addressed to the District Court of" }, { "docid": "10609465", "title": "", "text": "one-year limitation period for section 2254 petitions which normally runs from “the date on which the judgment became final by the conclusion of direct review”). Petitioner’s original convictions became final when they were affirmed by the SJC on March 4, 1997. See Johnson, 424 Mass. 338, 676 N.E.2d 1123. The instant petition was obviously filed well beyond the one-year limitation period. For these further reasons, therefore, the court will recommend that Respondent’s motion to dismiss the petition be allowed. III. Conclusion For the reasons stated, the court recommends that Respondent’s motion to dismiss be ALLOWED. February 22, 2006. . (See, e.g., Petition at 5-6: Ground One (\"The petitioner seeks an evidentiary hearing to determine whether his direct appeal was no more than a meaningless ritual because the inordinate and [unjustified delays in the appellate court violated the petitioner's due process right, denial of ineffective assistance of counsel.”); Ground Two (\"The petitioner seeks an evidentiary hearing to determine whether his direct appeal was no more than a meaningless ritual because the inordinate and unjustified delays of the trial transcript and direct appeal over nine year [sic] resulted in denial of his right to the effective assistance of counsel.”); Ground Three (“Inordinate and unjustified delays in appellate process over nine years processing and delivery of the trial transcripts and direct appeal spurred the petitioner to seek hearing to determine whether his direct appeal was no more than a meaningless ritual because the conviction [was] obtained by use of evidence gained pursuant to unconstitutional search and seizure and unlawful arrest.”); and Ground Four (\"Inordinate and unjustible [sic] delays in appellate process over nine years processing and delivery of the trial transcripts and direct appeal demands petitioner seek hearing to determine whether his direct appeal was no more than a meaningless ritual because of denial of right [to] the effective assistance of counsel, privilege against self-incrimination, and unconstitutional search and seizure.”).) . The parties are advised that under the provisions of Rule 3(b) of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts, any party who" }, { "docid": "12144662", "title": "", "text": "but the following December the Louisiana Supreme Court granted an out-of-time appeal and appointed appellate counsel for Strahan. Counsel made an examination for potential error and designated the part of the trial record to be transcribed for the appeal. Voir dire examination of jurors, closing argument and the judge’s charge to the jury were available for transcription but were not designated and were thus not transcribed. Under Louisiana law in effect at that time, transcripts included only those portions of the trial record for which a bill of exceptions, a claim of error, was reserved. After reviewing the record presented, which included the testimony of all witnesses, Louisiana’s highest court affirmed the conviction. State v. Strahan, 325 So.2d 231 (La.1976). Strahan subsequently sought state habeas relief which was denied by the trial court and by the Louisiana Supreme Court. Strahand v. Blackburn, 396 So.2d 912 (La. 1981). In the intervening years the state court reporter died and his trial notes were destroyed. On March 12, 1981, Strahan filed a petition for federal habeas, contending that he was denied due process because the court reporter failed to transcribe the entire trial thus precluding review of alleged trial errors. After a dismissal upon recommendation of the magistrate, the petition was reinstated, reconsidered and again dismissed upon a finding and conclusion that no due process violation occurred as a consequence of the partial transcription of the state trial record. Analysis We do not consider the merits of Strahan’s petition for, as noted above, we conclude that the filing of the petition was prejudicially delayed. Rule 9(a) of the Rules Governing Section 2254 Cases provides: A petition may be dismissed if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred. Rule 9(a) incorporates into the body of habeas corpus law the element of" }, { "docid": "3993466", "title": "", "text": "to appeal further. On April 24, 2007, after exhausting his available state court remedies, Petitioner filed a pro se petition for a writ of habeas corpus in the district court pursuant to 28 U.S.C. § 2254. In his habeas petition Petitioner raised three grounds for relief: (1) that the Ohio courts’ denial of his motion for delayed appeal violated his due process rights; (2) that the State of Ohio’s failure to provide him with appellate counsel violated his Sixth Amendment right to appellate counsel; and (3) that his trial counsel’s ineffective assistance violated his Sixth Amendment right to trial counsel. (R. 9, Magistrate’s Rep. and Recommendation at 4.) Although pro se Petitioner did not state so explicitly, the substance of his habeas petition challenges the voluntariness of his guilty plea. The district court referred Petitioner’s habeas petition to a magistrate judge. The magistrate judge stated in his Report and Recommendation that although Petitioner had not waived his right to challenge the voluntariness of his guilty plea, Petitioner had proeedurally defaulted his habeas claims by failing to satisfy the requirements of Ohio Rule of Appellate Procedure 5(A) in filing his motion for delayed appeal in the Ohio Court of Appeals. The district court adopted the magistrate judge’s Report and Recommendation, and denied Petitioner’s habeas claims as procedurally defaulted. Nevertheless, the district court granted Petitioner a certificate of appealability on his habeas claims, and Petitioner thereafter filed the instant timely appeal. DISCUSSION I. Standard of Review In reviewing a district court’s denial of a petition for a writ of habeas corpus, this Court reviews findings of facts for clear error and questions of law de novo. Haliym v. Mitchell, 492 F.3d 680, 689 (6th Cir .2007). II. Analysis In pleading guilty, Petitioner waived his right to appeal the substance of his guilty plea, and was advised as much by the Ohio trial court. In his Report and Recommendation, the magistrate judge quoted the transcript of Petitioner’s sentencing hearing at which the Ohio trial court engaged in the following colloquy with Petitioner: the court asked, “Do you understand that at the end of" }, { "docid": "14239018", "title": "", "text": "either as alibi evidence or as evidence of the identification of the participants in the bank robbery, neither an evidentiary hearing nor a new trial was warranted. See Dalli, 491 F.2d at 761 (no evidentiary hearing warranted where petitioner did not demonstrate that allegations could be “established] by competent evidence”). Accordingly, the \"newly discovered evidence” warranted neither an eviden-tiary hearing nor a new trial. See Benavente Gomez, 921 F.2d at 382; Martin, 815 F.2d at 824. As the district court correctly concluded that petitioner was entitled to no relief, the judgment must be affirmed. Affirmed. . The district court denied petitioner’s post-judgment motions. See United States v. Barrett, 598 F.Supp. 469 (D.Me.1984). The conviction-was affirmed on direct appeal. See United States v. Barrett, 766 F.2d 609 (1st Cir.), cert. denied, 474 U.S. 923, 106 S.Ct. 258, 88 L.Ed.2d 264 (1985). The district court opinion dismissing the instant § 2255 motion is reported as well. See Barrett v. United States, 763 F.Supp. 658 (D.Me.1991). . Before trial, the government agreed to disclose all prior statements of witness Aceto. AUSA Terison represented to the district court that petitioner's trial counsel had been, or would be, provided \"everything [the government has] that’s on paper from Mr. Aceto.” Rather than providing petitioner's trial counsel with the 72-page verbatim Aceto interview transcript, however, the government submitted a redacted summary of the Arkansas interview form \"FBI 302.\" The government does not deny knowledge of the existence of the verbatim interview transcript at the time of trial, but bases its decision to redact on security grounds. See infra note 13. . In his reply brief on appeal, petitioner attempts, likewise for the first time, to characterize the so-called \"reply brief’ filed in the district court as a “traverse.” See United States v. Benavente Gomez, 921 F.2d 378, 386 (1st Cir.1990) (arguments not raised in opening appellate brief are waived); Playboy Enterprises v. Public Service Comm'n, 906 F.2d 25, 40 (1st Cir.) (\"An appellant waives any issue which it does not adequately raise in its initial brief, because in ‘preparing briefs and arguments, an appellee is entitled to" }, { "docid": "17469655", "title": "", "text": "trial transcript was not unconstitutional delay. 645 F.2d at 91. Other eases containing assertions that a delay in the appeals process constituted a possible due process violation dealt with considerably longer delays than that experienced by Kimmons. See, e.g., Rheuark v. Shaw, 628 F.2d at 297 (transcript delay of twenty-three months, eleven days after judge ordered its preparation); United States v. Antoine, 906 F.2d 1379 (9th Cir.1990) (three-year delay, two years of which attributable to court reporter’s failure to provide transcript); DeLancy v. Caldwell, 741 F.2d 1246 (10th Cir.1984) (section 1983 case in which court reporter refused to release transcript for three years). Rule 11 of the Federal Rules of Appellate Procedure details the procedure to be followed by a court reporter when a transcript request is made. The court reporter for Kimmons’ trial did not follow these rules as required, but as we stated in a recent case involving court reporter duties, a court reporter’s failure to abide with the rules requires reversal of a conviction “only if the defendant can demonstrate prejudice.” United States v. Nolan, 910 F.2d 1553, 1560 (7th Cir.1990). See United States v. Antoine, 906 F.2d at 1382 (no due process violation can occur without evidence of harm to the appellant). We stated that prejudice occurs only when the unavailability of a transcript prevents the appellate court from determining whether there is reversible error, and added that “lack of a transcript does not necessarily mean that review is impossible.” United States v. Nolan, 910 F.2d at 1560. In Kimmons’ situation, we are not required to decide an appeal without a transcript, for Kimmons had received a copy of the transcript before the filing of his final brief. Kimmons does not allege that five of his six convictions are wrong on the merits, but challenges only the conspiracy conviction. Even if we were to find that a due process violation occurred, the remedy sought by Kimmons is extreme given the one substantive challenge to the convictions. In United States v. Pratt, the court noted that it declined to hold the nine-month transcript delay unconstitutional because of" }, { "docid": "22048157", "title": "", "text": "of Appellate Procedure, another reporter produced a partial transcript and the appellate process went forward. As a result of the delay in obtaining a transcript, petitioner’s appeal was not heard until four years after his conviction. 950 F. 2d 1471, 1472-1473 (CA9 1991); No. C88-260TB (WD Wash., Feb. 16, 1990), pp. 2-3, reprinted in App. 24. In 1990, the Court of Appeals set aside petitioner’s conviction and remanded the ease to the District Court to determine whether petitioner’s appeal had been prejudiced by the lack of a verbatim transcript, and whether the delay in receiving the transcript violated petitioner’s constitutional right to due process. United States v. Antoine, 906 F. 2d 1379 (CA9). The District Court ruled against petitioner on both issues and reinstated his conviction. No. C85-87T (WD Wash., Aug. 21,1991), reprinted in App. 45. The Court of Appeals then affirmed. 967 F. 2d 592 (CA9 1992) (judgt. order), reprinted in App. 66. In the meantime, before the Court of Appeals disposed of his first appeal in 1990, petitioner filed this civil action, seeking damages from Ruggenberg and respondent Byers & Anderson, Inc., the firm that had engaged her pursuant to its contract to provide reporting services to the District Court. Following discovery, the District Court granted summary judgment in favor of respondents on the ground that they were entitled to absolute immunity. Petitioner’s pendent state-law claims were dismissed on jurisdictional grounds. No. C88-260TB, supra, reprinted in App. 23. Without reaching questions of liability or damages, the Court of Appeals affirmed. Reasoning that judicial immu nity is “justified and defined by the functions it protects and serves,” Forrester v. White, 484 U. S. 219, 227 (1988) (emphasis omitted), and that “the tasks performed by a court reporter in furtherance of her statutory duties are functionally part and parcel of the judicial process,” the Court of Appeals held that actions within the scope of a reporter’s authority are absolutely immune. 950 F. 2d, at 1475-1476. Some Circuits have held that court reporters are protected only by qualified immunity. We granted certiorari to resolve this conflict. 506 U. S. 914 (1992)." }, { "docid": "22048158", "title": "", "text": "damages from Ruggenberg and respondent Byers & Anderson, Inc., the firm that had engaged her pursuant to its contract to provide reporting services to the District Court. Following discovery, the District Court granted summary judgment in favor of respondents on the ground that they were entitled to absolute immunity. Petitioner’s pendent state-law claims were dismissed on jurisdictional grounds. No. C88-260TB, supra, reprinted in App. 23. Without reaching questions of liability or damages, the Court of Appeals affirmed. Reasoning that judicial immu nity is “justified and defined by the functions it protects and serves,” Forrester v. White, 484 U. S. 219, 227 (1988) (emphasis omitted), and that “the tasks performed by a court reporter in furtherance of her statutory duties are functionally part and parcel of the judicial process,” the Court of Appeals held that actions within the scope of a reporter’s authority are absolutely immune. 950 F. 2d, at 1475-1476. Some Circuits have held that court reporters are protected only by qualified immunity. We granted certiorari to resolve this conflict. 506 U. S. 914 (1992). II The proponent of a claim to absolute immunity bears the burden of establishing the justification for such immunity. In determining which officials perform functions that might justify a full exemption from liability, “we have undertaken ‘a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it.’” Butz v. Economou, 438 U. S. 478, 508 (1978) (quoting Imbler v. Pachtman, 424 U. S. 409, 421 (1976)); see also Burns v. Reed, 500 U. S. 478, 485 (1991). The skilled, professional court reporter of today was unknown during the centuries when the common-law doctrine of judicial immunity developed. See generally Ratteray, Verbatim Reporting Comes of Age, 56 Judicature 368 (1973). It was not until the late 19th century that official court reporters began to appear in state courts. Id., at 368-369. Prior to enactment of the Court Reporter Act in 1944, the federal system did not provide for official court reporting. Court reporters were not among the class of persons protected by judicial immunity in the 19th century." }, { "docid": "12144663", "title": "", "text": "he was denied due process because the court reporter failed to transcribe the entire trial thus precluding review of alleged trial errors. After a dismissal upon recommendation of the magistrate, the petition was reinstated, reconsidered and again dismissed upon a finding and conclusion that no due process violation occurred as a consequence of the partial transcription of the state trial record. Analysis We do not consider the merits of Strahan’s petition for, as noted above, we conclude that the filing of the petition was prejudicially delayed. Rule 9(a) of the Rules Governing Section 2254 Cases provides: A petition may be dismissed if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred. Rule 9(a) incorporates into the body of habeas corpus law the element of laches. 17 Wright & Miller, Federal Practice and Procedure, § 4268 at 701 (1978). As originally proposed, Rule 9(a) would have creat ed a rebuttable presumption of prejudice in favor of the state if the habeas petition was filed more than five years after the judgment of conviction. Congress rejected this mechanical approach. In deleting the language relating to the rebuttable presumption, the House Judiciary Committee stated that “it is unsound policy to require the defendant to overcome a presumption of prejudice and [this] legislation brings Rule 9(a) into conformity with other provisions of law.” H.R.Rep. No. 1471, 94th Cong., 2d Sess. 5, reprinted in 1976 U.S. Code Cong. & Ad.News 2478, 2481. The Gommittee noted that the “facts which make it difficult for the State to respond to an old claim ... can readily be discovered by the State.” Id. at 2482 n. 8. The proposed five-year rebuttable presumption would have been, in effect, a statute of limitation, arguably prohibited by the Constitution which mandates that: “The privilege of the writ of habeas corpus" }, { "docid": "14239019", "title": "", "text": "witness Aceto. AUSA Terison represented to the district court that petitioner's trial counsel had been, or would be, provided \"everything [the government has] that’s on paper from Mr. Aceto.” Rather than providing petitioner's trial counsel with the 72-page verbatim Aceto interview transcript, however, the government submitted a redacted summary of the Arkansas interview form \"FBI 302.\" The government does not deny knowledge of the existence of the verbatim interview transcript at the time of trial, but bases its decision to redact on security grounds. See infra note 13. . In his reply brief on appeal, petitioner attempts, likewise for the first time, to characterize the so-called \"reply brief’ filed in the district court as a “traverse.” See United States v. Benavente Gomez, 921 F.2d 378, 386 (1st Cir.1990) (arguments not raised in opening appellate brief are waived); Playboy Enterprises v. Public Service Comm'n, 906 F.2d 25, 40 (1st Cir.) (\"An appellant waives any issue which it does not adequately raise in its initial brief, because in ‘preparing briefs and arguments, an appellee is entitled to rely on the content of an appellant’s brief for the scope of the issues appealed.’\") (quoting Pignons S.A. de Mecanique v. Polaroid Corp., 701 F.2d 1, 3 (1st Cir.1983)) (citations omitted), cert. denied, — U.S. -, 111 S.Ct. 388, 112 L.Ed.2d 399 (1990). The Section 2255 rules do not contemplate the filing of a traverse, see Rule 5, Rules Governing Section 2255 Proceedings, except in \"special circumstances,” not present here, where the government’s response requests dismissal of the petition pursuant to Rule 9 (\"Delayed or Successive Motions”). See Advisory Committee Notes to Rule 5, Rules Governing Section 2255 Proceedings; United States v. Smith, 869 F.2d 835, 837-38 (5th Cir.1989) (\"[t]he rules under § 2255 ... do not permit traverse pleadings unless the government moves for dismissal under Rule 9”). Moreover, petitioner did not request or obtain permission to file a traverse, but a \"brief reply memorandum.” . The Federal Rules of Civil Procedure are applicable to § 2255 proceedings. See Fed. R.Civ.P. 1, 81(b); 28 U.S.C. § 2242; see also Rule 2(b) & Rule 5" }, { "docid": "9411185", "title": "", "text": "in question in this appeal. That order gave the State four alternatives: (1) hold the necessary hearing to create a substitute transcript; (2) grant petitioner a delayed appeal in the process of which a substitute transcript would be created; (3) release petitioner from custody; or (4) set aside petitioner’s conviction and retry him. The vice I find in the district court’s order is the alternative which requires the state to release the prisoner if none of the other alternatives is elected. The state has already denied a petition for a delayed appeal. It has indicated by its denial of applications for habeas corpus (three in number) that correctly or incorrectly it has determined that the conviction was in all respects according to law and that it was not in violation of the Constitution and laws of the United States or of the State of Arizona. It has also indicated rather clearly that it intends to take no further action. The remaining alternative is release. The present petition was one addressed to the District Court of the United States. That court has jurisdiction “[t]o entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). However, “The writ of habeas corpus shall not extend to a prisoner unless— “(3) He is in custody in violation of the Constitution or laws or treaties of the United States; . . .” 28 U.S.C. § 2241(c) (3). The district court’s order states that “petitioner [has] been denied his right of due process and equal protection of the laws under the Fourteenth Amendment to the Constitution of the United States, in that he was granted no hearing of any kind [by the Arizona Supreme Court] but was dealt with summarily, 28 U.S.C. § 2243, . . .” The district court cites no relevant authority for its determination, and adduced no evidence at its hearing which supports" }, { "docid": "9411170", "title": "", "text": "S.Ct. 1366, 10 L.Ed. 2d 456]) for the creation of a transcript substitute. The petitioner followed the district judge’s suggestion and made the appropriate motion for delayed appeal in the Arizona Supreme Court. His counsel apprised that court of the District Court’s order of December 19, 1969. But the Arizona Supreme Court, to the obvious embarrassment of the Arizona Attorney General, denied the motion without a hearing. This led to the District Court’s order filed June 8, 1970, the order appealed from herein. That order came almost three years after petitioner’s first formal effort to obtain a reporter’s trial transcript, almost two years after his habeas corpus petition was first filed in the federal court and fifteen months after the District Court’s first order for the production of a reporter’s transcript. In the order appealed from (R. 353), the District Court gave the respondent Warden and the State of Arizona four alternatives, one of which was to be exercised within sixty days from the date of the order. As stated above, the specified alternatives as to the petitioner are: release him, grant him a delayed appeal by the state courts (which, under state procedure, would apparently automatically result in the preparation of a transcript substitute), afford him a “Norvell v. Illinois” hearing (another method whereby the federal court would have a transcript substitute upon which to act), or set aside his conviction and re-try him. Arizona challenges this Order as being beyond the power of the District Court. In effect, Arizona contends that if the District Judge desires to have a transcript substitute prepared, he should himself hold the hearing necessary for its preparation and he cannot order the state courts to hold such a hearing, either directly or as an alternative to the granting of a writ of habeas corpus and release of petitioner. The substantive law and the procedural requirements for criminal trials involving allegedly coerced confessions have now been well established. The landmark cases were decided after this petitioner’s trial but the requirements are retroactive. When the state seeks to use a confession which the defendant claims" }, { "docid": "19018568", "title": "", "text": "MEMORANDUM DECISION AND ORDER EDWARD C. REED, Jr., District Judge. John Allen Coleman (hereafter “Petitioner”) filed a petition (#2) pursuant to 28 U.S.C. § 2254 asserting three grounds for relief. Respondents thereafter filed a Motion to Dismiss (# 6) arguing that Petitioner’s claims were proeedurally barred. The court found procedural default, but appointed the Federal Public Defender to assist Petitioner in filing points and authorities addressing whether Petitioner could overcome the procedural bar by showing cause and prejudice (# 17). Points and authorities and the appropriate responses have now been filed by both parties. I. PROCEDURAL BACKGROUND. Petitioner pled guilty and was convicted of a single count of sexual assault. (# 6 at Exh. D). He was represented at the proceedings by the Clark County Public Defender. Petitioner was sentenced to life with the possibility of parole on December 5, 1989. Judgment was entered on December 11, 1989. State procedure foreclosed a direct appeal of the conviction. Approximately four months after his conviction, Petitioner sent a letter to counsel, Morgan Harris, of the Clark County Public Defenders Office. (# 6 at Exh. G). In the letter, Petitioner requested that the public defender either withdraw from representing him and forward to him “all papers, documents, transcripts, police reports, and lab tests” pertinent to his ease, or, file a petition for post-conviction relief on his behalf raising the following issues: (1) that his plea was involuntary; (2) that he was not advised of the range of punishment; (3) that he was racially discriminated against in the sentencing process; (4) that he was ignorant to the proceedings [sic]; (5) that he was denied the effective assistance of counsel; and (6) that the court failed to advise him of his constitutional rights. Consequently, the public defender’s office moved to withdraw on the basis of Petitioner’s allegation of ineffective assistance of counsel due to a conflict of interest. (# 6 at Exh. G). A hearing was held and the court granted the motion and dismissed the public defender as counsel of record. (#6 at Exh. H). The transcripts indicate that Petitioner was not present. (#" }, { "docid": "23629516", "title": "", "text": "favor. His anxiety over the outcome of his appeal was obvious, and the appeal possibly was determinative of how long he would have to spend in prison. The passage of almost three years between his original conviction and resolution of his appeal also undermines the likelihood of a reliable development of the facts at a new trial, if that should be necessary. In summary, we conclude that the delay in preparing defendant’s transcript may well have violated due process. B. We conclude, however, that where, as here, the appeal has been heard and found lacking in merit there is not any sound reason to order defendant’s release. Cf. Layne, supra (where undue delay in state appeals process had resulted in possible denial of due process to petitioner, nonetheless affirmative relief was inappropriate where state courts were now moving forward with petitioner's appeal); Morales Roque v. Puerto Rico, 558 F.2d 606, 607 (1 Cir.1976) (release of prisoner when appeal is delayed is only a last resort; order directing expeditious preparation of transcripts is likely to be more appropriate). Cf. Rheuark, supra (§ 1983 action by appellant against state court judge, court reporter and county commissioners alleging undue delay in preparing transcript for appeal). This is not to say that a possible or actual due process violation must go unremedied. Both we and the district court have supervisory powers over court reporters including the power to punish for civil contempt in appropriate cases. In addition, we have authority under the All Writs Act, 28 U.S.C. § 1651, to grant mandamus and other extraordinary relief. More importantly, it is incumbent on us and the district court to monitor the production of transcripts so that an unjustified delay of the magnitude of that in this case does not recur. As was said so graphically in Rheuark, supra, 628 F.2d at 304, “[t]he cancerous malady of delay, which haunts our judicial system by postponing the rectification of wrong and the vindication of those unjustly convicted, must be excised from the judicial process at every stage.” AFFIRMED." }, { "docid": "22048156", "title": "", "text": "Justice Stevens delivered the opinion of the Court. This case presents the question whether a court reporter is absolutely immune from damages liability for failing to produce a transcript of a federal criminal trial. I In March 1986, after a 2-day trial, a jury convicted petitioner of bank robbery. Petitioner promptly appealed and ordered a copy of the transcript from respondent Ruggenberg, who had served as the court reporter. The court ordered Ruggenberg to produce a transcript by May 29, 1986. Over two years later, Ruggenberg had yet to provide a transcript, despite a long series of hearings, court orders, and new filing deadlines. In July 1988, Ruggenberg finally explained that she had lost many of her trial notes, though additional notes and tapes were later to come to light. At one point in the proceedings, Ruggenberg was fined and arrested as the Court of Appeals sought to obtain this and other overdue transcripts. Eventually, making use of Ruggenberg’s partial notes and materials submitted by the parties pursuant to Rule 10(c) of the Federal Rules of Appellate Procedure, another reporter produced a partial transcript and the appellate process went forward. As a result of the delay in obtaining a transcript, petitioner’s appeal was not heard until four years after his conviction. 950 F. 2d 1471, 1472-1473 (CA9 1991); No. C88-260TB (WD Wash., Feb. 16, 1990), pp. 2-3, reprinted in App. 24. In 1990, the Court of Appeals set aside petitioner’s conviction and remanded the ease to the District Court to determine whether petitioner’s appeal had been prejudiced by the lack of a verbatim transcript, and whether the delay in receiving the transcript violated petitioner’s constitutional right to due process. United States v. Antoine, 906 F. 2d 1379 (CA9). The District Court ruled against petitioner on both issues and reinstated his conviction. No. C85-87T (WD Wash., Aug. 21,1991), reprinted in App. 45. The Court of Appeals then affirmed. 967 F. 2d 592 (CA9 1992) (judgt. order), reprinted in App. 66. In the meantime, before the Court of Appeals disposed of his first appeal in 1990, petitioner filed this civil action, seeking" }, { "docid": "10609466", "title": "", "text": "the trial transcript and direct appeal over nine year [sic] resulted in denial of his right to the effective assistance of counsel.”); Ground Three (“Inordinate and unjustified delays in appellate process over nine years processing and delivery of the trial transcripts and direct appeal spurred the petitioner to seek hearing to determine whether his direct appeal was no more than a meaningless ritual because the conviction [was] obtained by use of evidence gained pursuant to unconstitutional search and seizure and unlawful arrest.”); and Ground Four (\"Inordinate and unjustible [sic] delays in appellate process over nine years processing and delivery of the trial transcripts and direct appeal demands petitioner seek hearing to determine whether his direct appeal was no more than a meaningless ritual because of denial of right [to] the effective assistance of counsel, privilege against self-incrimination, and unconstitutional search and seizure.”).) . The parties are advised that under the provisions of Rule 3(b) of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts, any party who objects to these findings and recommendations must file a written objection with the Clerk of this Court within ten (10) days of the party's receipt of this Report and Recommendation. The written objection must specifically identify the portion of the proposed findings or recommendations to which objection is made and the basis for such objection. The parties are further advised that failure to comply with this rule shall preclude further appellate review by the Court of Appeals of the District Court order entered pursuant to this Report and Recommendation. See Keating v. Secretary of Health & Human Services, 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir.1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604 (1st Cir.1980). See also Thomas v. Arn, 474 U.S. 140, 154-55, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). A party may respond to another party’s objections within ten (10) days" }, { "docid": "22048166", "title": "", "text": "“Statement on the evidence or proceedings when no report was made or when the transcript is unavailable. — If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant’s recollection.” In addition to state-law claims, petitioner's complaint had alleged a violation of 42 U. S. C. § 1983. Noting that petitioner's state-law claims had been dismissed on jurisdictional grounds, and that § 1983 does not provide a basis for suit against federal agents, the Court of Appeals assumed that the complaint alleged facts sufficient to support a federal claim like that recognized in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). 950 F. 2d 1471, 1473-1474 (CA9 1991). Because the only question presented by the certiorari petition relates to the absolute immu nity defense on which the Court of Appeals based its decision, see Pet. for Cert, i, we have no occasion to comment on the validity of petitioner's underlying cause of action. See McLallen v. Henderson, 492 F. 2d 1298, 1299-1300 (CA8 1974); Slavin v. Curry, 574 F. 2d 1256, 1265-1266 (CA5 1978); Green v. Maraio, 722 F. 2d 1013, 1018 (CA2 1983). The Seventh Gircuit, like the Ninth, provides absolute immunity for court reporters. Scruggs v. Moellering, 870 F. 2d 376, 377, cert. denied, 493 U. S. 956 (1989). We have consistently “emphasized that the official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question. The presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties. We have been quite sparing in our recognition of absolute immunity, and have refused to extend it any further than its justification would warrant.” Burns v. Reed, 500 U. S. 478, 486-487 (1991) (internal quotation marks and citations omitted). For purposes of immunity, we have not distinguished actions brought under 42 U. S. C. § 1983 against state officials from Bivens" }, { "docid": "22048165", "title": "", "text": "Assuming the relevance of respondents’ policy arguments, we find them unpersuasive for three reasons. First, our understanding is that cases of this kind are relatively rare. Respondents have not provided us with empirical evidence demonstrating the existence of any significant volume of vexatious and burdensome actions against reporters, even in the Circuits in which reporters are not absolutely immune. See n. 3, supra. Second, if a large number of cases does materialize, and we have misjudged the significance of this burden, then a full review of the countervailing policy considerations by the Congress may result in appropriate amendment to the Court Reporter Act. Third, and most important, we have no reason to believe that the Federal Judiciary, which surely is familiar with the special virtues and concerns of the court reporting profession, will be unable to administer justice to its members fairly. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. So ordered. Federal Rule of Appellate Procedure 10(c) provides in relevant part: “Statement on the evidence or proceedings when no report was made or when the transcript is unavailable. — If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant’s recollection.” In addition to state-law claims, petitioner's complaint had alleged a violation of 42 U. S. C. § 1983. Noting that petitioner's state-law claims had been dismissed on jurisdictional grounds, and that § 1983 does not provide a basis for suit against federal agents, the Court of Appeals assumed that the complaint alleged facts sufficient to support a federal claim like that recognized in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). 950 F. 2d 1471, 1473-1474 (CA9 1991). Because the only question presented by the certiorari petition relates to the absolute immu nity defense on which the Court of Appeals based its decision, see Pet. for Cert, i, we have no occasion to" } ]

[ { "docid": "22657509", "title": "", "text": "satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong. The issue becomes somewhat more complicated where, as here, the district court dismisses the petition based on procedural grounds. We hold as follows: When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. This construction gives meaning to Congress’ requirement that a prisoner demonstrate substantial underlying constitutional claims and is in conformity with the meaning of the “substantial showing” standard provided in Barefoot, supra, at 893, and n. 4, and adopted by Congress in AEDPA. Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further. In such a circumstance, no appeal would be warranted. Determining whether a COA should issue where the petition was dismissed on procedural grounds has two compo nents, one directed at the underlying constitutional claims and one directed at the district court’s procedural holding. Section 2253 mandates that both showings be made before the court of appeals may entertain the appeal. Each component of the § 2253(c) showing is part of a threshold inquiry, and a court may find that it can dispose of the application in a fair and prompt manner if it proceeds first to resolve the issue whose answer is more apparent from the record and arguments. The recognition that 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,” Ashwander" } ]

[ { "docid": "13139588", "title": "", "text": "only in the event that it found that he actually attacked Vick. The court did not instruct the jury on a law of the parties theory of liability. The jury found Wright guilty, and he was sentenced to death. Wright’s conviction was affirmed on direct appeal to the Texas Court of Criminal Appeals (“TCCA”). Wright v. State, 28 S.W.3d 526 (Tex.Crim.App.2000). He petitioned the state court for a writ of habeas corpus. The state trial judge adopted the State’s proposed findings of fact and conclusions of law in their entirety and recommended that relief be denied. The TCCA adopted the trial court’s findings of fact and conclusions of law and denied relief. Wright petitioned the United States District Court for the Northern District of Texas for a federal writ of habeas corpus. A magistrate judge recommended denying relief on all of Wright’s claims. Wright v. Dretke, 3:01-CV-0472, 2004 WL 438941 (N.D.Tex. Mar.10, 2004). The district court judge adopted the magistrate judge’s recommendation and denied the petition. II We issue a certificate of appealability only when the movant has made “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(e)(2). This requires him to “demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). At this stage, we are not permitted to give full consideration of the factual or legal bases in support of the claim. Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Instead, we merely conduct an overview of the claims and a general assessment of their merits. Id. The movant’s arguments “must be assessed under the deferential standard required by 28 U.S.C. § 2254(d)(1).” Tennard v. Dretke, 542 U.S. 274, 282, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004); see Miller-El, 537 U.S. at 348-50, 123 S.Ct. 1029 (Scalia, J., concurring) (arguing that a court must consider 28 U.S.C. § 2254(d)’s deferential standard of review when ruling on motion for COA). A federal court may not issue a" }, { "docid": "13109965", "title": "", "text": "Bagwell appealed the denial of the COA on two of his habeas claims to this court. II. STANDARD OF REVIEW Bagwell’s § 2254 habeas petition is subject to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 1918, 150 L.Ed.2d 9 (2001). AEDPA requires Bagwell obtain a COA before he can appeal the district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1) (2000). Hence, “until a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). A COA will issue only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000); Miller-El, 537 U.S. at 336, 123 S.Ct. at 1039. More specifically, the petitioner must demonstrate that “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000). Likewise, when the district court has rejected a claim on a procedural ground, “the petitioner must also demonstrate that ‘jurists of reason would find it debatable whether the district court was correct in the procedural ruling.’ ” Henry v. Cockrell, 327 F.3d 429, 431 (5th Cir.2003) (quoting Slack, 529 U.S. at 484, 120 S.Ct. at 1604). The Supreme Court counseled that “a COA ruling is not the occasion for a ruling on the merit of petitioner’s claim[.]” Id. at 331, 123 S.Ct. 1029. Instead, this court should engage in an “overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 336, 123 S.Ct. 1029. “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Ultimately, “[t]o prevail on a petition for writ of habeas corpus, a petitioner must demonstrate that the state" }, { "docid": "11683530", "title": "", "text": "This case arises on appeal from the United States District Court for the Southern District of Texas, Houston Division, Judge Ewing Werlein, Jr. presiding. The State moved for summary judgment. On March 31, 2003, the district court granted the State’s motion for summary judgment denying Smith relief without an evidentiary hearing and dismissed the writ petition in an unpublished decision. Smith v. Cockrell, No. H-00-1771 (S.D.Tex. filed March 31, 2003). The district court also denied Smith’s COA request sua sponte. On September 22, 2003, Smith timely filed his appeal, requesting a COA from this court. Standard of review Because Smith’s federal petition for habeas review was filed on May 30, 2000, we review it under the standards articulated in the Antiterrorism and Effective Death Penalty Act (“AEDPA”). See 28 U.S.C. § 2254. To obtain a COA, the petitioner must make a “substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, the petitioner must demonstrate “that reasonable jurists could debate whether [] the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). In determining whether to grant a COA, our inquiry is limited to a threshold examination that “requires an overview of the claims in the habeas petition and a general assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). A full consideration of the merits is not required, nor permitted, by § 2253(c)(2). Id. The fact that a COA should issue does not mean the petitioner will be entitled to ultimate relief, rather “the question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 123 S.Ct. 1029. Accordingly, we must be mindful that “a claim can be debatable even though every jurist of reason might agree, after the COA" }, { "docid": "10202291", "title": "", "text": "PER CURIAM: Charles Hensley Mitchell, II, Texas prisoner # 1851936, moves for a certificate of appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition, which challenged his conviction of aggravated assault with a deadly weapon. He also seeks a COA to appeal the district court’s postjudgment denials of his motion for an evidentiary hearing and his motion to alter or amend the judgment under Federal Rules of Civil Procedure 59(e). The district court denied a COA when it denied Mitchell’s § 2254 petition, but it did not address the need for a COA in connection with the post-judgment rulings. To obtain a COA, a § 2254 petitioner must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). This means that for Mitchell’s claims of prosecutorial misconduct and ineffective assistance of appellate counsel, which the district court denied on the merits, Mitchell must “demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). He fails to make such a showing. Mitchell also challenges the district court’s finding that he procedurally defaulted his claim that the state trial court’s refusal to give the jury an instruction on self-defense violated due process, but he fails to show “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. Also, Mitchell fails to show that reasonable jurists could debate whether, or agree that, his challenge to the denial of his motion for partial summary judgment is “adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (internal quotation marks and citation omitted). Mitchell fails to brief, and thus waived, his claims of ineffective assistance of trial counsel. Hughes v. Johnson, 191 F.3d 607, 612-13 (5th Cir. 1999). With respect to these claims, we DENY a COA. A COA is required to" }, { "docid": "14010033", "title": "", "text": "denied. II To receive a COA, Cardenas must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). When a district court rejects a claim on the merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). In capital cases, doubts about whether the petitioner has met the standard must be resolved in favor of the petitioner. Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.2000). When a petition is dismissed on procedural grounds, the petitioner must show that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595 (emphasis added). At the COA stage, a court should “limit its examination to a threshold inquiry into the underlying merit of his claims.” Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citing Slack, 529 U.S. at 481, 120 S.Ct. 1595). We do not fully consider “the factual or legal bases adduced in support of the claims,” and a petitioner need not show that an appeal will succeed in order to be entitled to a COA. Id. at 336-37, 123 S.Ct. 1029. “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 120 S.Ct. 1595. The district court should evaluate the habeas petition to see if the state court’s determination “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). A decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless it “resulted in a decision that was based on an unreasonable determination of the facts in light" }, { "docid": "21875451", "title": "", "text": "AEDPA, a petitioner must obtain a COA before he can appeal the district court’s denial of habeas relief. See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[Ujntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the District Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable amongst jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. Where the district court has denied claims on procedural grounds, a COA should issue only if it is demonstrated that “jurists of reason would find it debatable whether the petition states a valid claim of a denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Miller-El, 537 U.S. at 342, 123 S.Ct. 1029. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Moreover, “[b]ecause" }, { "docid": "1635855", "title": "", "text": "were affirmed on direct appeal by the Texas Court of Criminal Appeals (CCA). Ward v. State, No. AP-75750, 2010 WL 454980, at *1 (Tex. Crim.App. Feb. 10, 2010). While his direct appeal was pending, Ward sought state habeas relief. The state trial court issued a report and findings recommending denial of habeas relief without an evidentiary hearing. Ex parte Ward, No. WR-70651-02, 2010 WL 3910075, at *1 (Tex.Crim. App. Oct. 6, 2010). The CCA adopted the trial,-judge’s findings and conclusions in part, and denied Ward’s habeas petition in an unpublished decision. Id. One year later, Ward filed the instant federal habeas corpus petition in federal district court. Ward asserted five federal claims for habeas relief. The district court denied his petition in its entirety and denied his request for a certificate of appeal-ability. Ward now seeks our permission to appeal three of the five claims that the district court rejected. II. JURISDICTION AND STANDARD OF REVIEW To appeal the district court’s denial of his habeas petition, Ward must first obtain a COA pursuant to 28 U.S.C. § 2253(c)(1). See Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Because the district court did not grant a COA on any of Ward’s claims, we have jurisdiction at this juncture only to consider whether a COA should issue, and not the ultimate merits of his claims. E.g., 28 U.S.C. § 2253(c); Miller-El, 537 U.S. at 335-36, 123 S.Ct. 1029. A COA may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists. could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. Specifically, “the petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Feldman v. Thaler, 695 F.3d 372, 377 (5th Cir.2012) (alteration omitted) (quoting Slack v. McDaniel, 529 U.S." }, { "docid": "22276151", "title": "", "text": "has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Supreme Court has explained that this means the petitioner must show “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3394 n. 4, 77 L.Ed.2d 1090 (1983)); accord Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). The certificate of appealability requirement is to be administered at the threshold of the appeal, and deciding whether to issue one neither requires nor permits full consideration of the factual and legal merits of the claims, Miller-El at 336, 123 S.Ct. at 1039, because “[t]he question is the debatability of the underlying-constitutional claim, not the resolution of that debate,” id. at 342, 123 S.Ct. at 1042. That means a petitioner is not required to demonstrate entitlement to appellate relief in order to be given an opportunity to pursue it. Still, the certificate of appealability requirement is not a toothless one, and it should be applied with its purpose in mind, which is to separate out those appeals that deserve more careful attention from the ones that do not. More than the absence of frivolity or the presence of good faith is required for a petitioner to clear this hurdle. Id. at 335-38, 123 S.Ct. at 1039-40. Of particular relevance to the three cases we have before us, each of which involves Rule 60(b) procedural issues in addition to merits issues, is the Slack decision. In that case the district court had denied the habeas petition on procedural grounds without reaching the underlying constitutional claim. Slack, 529 U.S. at 484, 120 S.Ct. at 1604. The Supreme Court held that in those circumstances a certificate of appealability should issue only if the petitioner makes both a substantial showing" }, { "docid": "9442958", "title": "", "text": "appeals first issues a COA. 28 U.S.C. § 2253(c)(1) (2004); Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (describing a COA as a “jurisdictional prerequisite” without which “federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners”); Neville v. Dretke, 423 F.3d 474, 478 (5th Cir.2005). In determining whether to grant a petitioner’s request for a COA, the Supreme Court has instructed that a “court of appeals should limit its examination to a threshold inquiry into the underlying merit of his claims.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029 (citing Slack v. McDaniel, 529 U.S. 473, 481, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Id. at 336, 123 S.Ct. 1029. A COA mil be granted “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2004). In order to meet this standard, Pippin must demonstrate that “jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029 (citing Slack, 529 U.S. at 484, 120 S.Ct. 1595). “The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 336, 123 S.Ct. 1029. Although the issuance of a COA “must not be pro forma or a matter of course,” the petitioner satisfies the burden under § 2253(c) by “demonstrating] that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Id. at 337-38, 123 S.Ct. 1029. “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Finally, any doubt as" }, { "docid": "5215502", "title": "", "text": "2011 WL 4826968 (Tex.Crim. App. Oct. 12, 2011). Garza filed his amended federal habeas petition in 2012, which the district court denied. Garza v. Thaler, 909 F.Supp.2d 578, 691 (W.D.Tex.2012). The district court also denied Garza a COA. Id. Garza now requests a COA from this court. II. The AEDPA governs our consideration of Garza’s request for a COA. Under the AEDPA, a state habeas petitioner must obtain a COA before he can appeal the federal district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1)(A); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (describing a COA as a jurisdictional prerequisite without which federal courts of appeals lack jurisdiction to rule on the merits of the appeals from habeas petitioners). A COA is warranted upon a substantial showing of the denial of a constitutional right. § 2253(c)(2). A petitioner satisfies this standard if reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). To obtain a COA when the district court has denied relief on procedural grounds, such as procedural default, a petitioner must show both a debatable claim on the merits and that the district court’s procedural ruling is debatable. See id. at 484-85, 120 S.Ct. 1595. The issue is the debatability of the underlying constitutional claim, not the resolution of the debate. Miller-El, 537 U.S. at 342, 123 S.Ct. 1029; see id. at 338, 123 S.Ct. 1029 ([A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail). This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Id. at 336, 123 S.Ct. 1029. In cases involving the death penalty, any doubts as to whether a COA shoúld issue must be resolved in [the petitioner’s] favor. Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000). We" }, { "docid": "19629239", "title": "", "text": "C. Walker as amicus curiae in support of the judgment of the Court of Appeals. She has ably discharged her responsibilities. III A This case comes to the Court in a somewhat unusual procedural posture. Under the Antiterrorism and Effective Death Penalty Act of 1996, there can be no appeal from a final order in a § 2255 proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability may issue \"only if the applicant has made a substantial showing of the denial of a constitutional right.\" § 2253(c)(2). That standard is met when \"reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner.\" Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Obtaining a certificate of appealability \"does not require a showing that the appeal will succeed,\" and \"a court of appeals should not decline the application ... merely because it believes the applicant will not demonstrate an entitlement to relief.\" Miller-El v. Cockrell, 537 U.S. 322, 337, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). The decision under review here is the single-judge order in which the Court of Appeals denied Welch a certificate of appealability. Under the standard described above, that order determined not only that Welch had failed to show any entitlement to relief but also that reasonable jurists would consider that conclusion to be beyond all debate. See Slack, supra, at 484, 120 S.Ct. 1595. The narrow question here is whether the Court of Appeals erred in making that determination. That narrow question, however, implicates a broader legal issue: whether Johnson is a substantive decision with retroactive effect in cases (like Welch's) on collateral review. If so, then on the present record reasonable jurists could at least debate whether Welch should obtain relief in his collateral challenge to his sentence. On these premises, the Court now proceeds to decide whether Johnson is retroactive. B The normal framework for determining whether a new rule applies to cases on collateral review stems from" }, { "docid": "23197595", "title": "", "text": "and the State’s summary-judgment motion was denied as moot. See Foster v. Dretke, No. SA-02-CA-301-RF, 2005 U.S. Dist. LEXIS 13862 (S.D. Tex. 3 Mar. 2005). Each side appealed. To do so, Foster requested a COA from our court on two claims. Foster, 2006 WL 616980, addresses the denial of that request. II. Review of this 28 U.S.C. § 2254 habeas proceeding is subject to the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (AEDPA). See, e.g., Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001). Before addressing the conditional habeas relief granted by the district court, we consider the belated COA request for a stand-alone actual-innocence claim. A. Under AEDPA, Foster may not appeal the denial of habeas relief unless he obtains a COA from either the district, or this, court. 28 U.S.C. § 2253(c); Fed. R.App. P. 22(b)(1); Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Under Federal Rule of Appellate Procedure 22(b)(1), the district court must first decide whether to grant a COA before one can be requested here. As noted, the district court denied a COA for the claim Foster seeks to appeal here. Obtaining a COA requires “a substantial showing of the denial of a constitutional right”. 28 U.S.C. § 2253(c)(2); e.g., Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack, 529 U.S. at 483, 120 S.Ct. 1595. For that requisite showing, an applicant usually must demonstrate “reasonable jurists could debate whether (or, for that matter, agree that) the [federal-habeas] petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further’ ”. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (quoting Slack, 529 U.S. at 484, 120 S.Ct. 1595). Where, as here, the district court’s habeas denial includes a procedural ruling, as opposed to one on the underlying constitutional claim, the showing is expanded. See Hall v. Cain, 216 F.3d 518, 521 (5th Cir.2000). In that situation, the applicant must show" }, { "docid": "16435186", "title": "", "text": "the old case number instead of initiating a new suit. No action was taken on this petition for several years. In July 2001, an order was issued under a new case number indicating that the amended petition would be treated as a new petition, filed in April 1995, and ordering the clerk of court to file a copy of the petition under the new case number. The State filed its response and moved for summary judgment. In September 2002, the federal district court denied habeas relief and refused to issue a COA. Kunkle now seeks a COA from this court. II. Kunkle filed the instant Section 2254 petition in April 1995, before the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA). As such, this court must apply pre-ADEPA law in reviewing the district court’s ruling. Slack v. McDaniel, 529 U.S. 473, 480, 120 S.Ct. 1595, 1602, 146 L.Ed.2d 542 (2000). However, where an appeal from a denial of a petition of habeas corpus is commenced after the effective date of the AEDPA, post-AEDPA law governs the right to appeal. Id. Kunkle filed a notice of appeal in the instant case on November 1, 2002. Therefore, the AEDPA amended version of 28 U.S.C. § 2253 controls Kunkle’s right to appeal. Before an appeal may be entertained, a prisoner who was denied habeas relief in the district court must first obtain a COA from a circuit judge. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). Until a COA has been issued, a federal appeals court lacks jurisdiction to rule on the merits of a habeas appeal. Miller-El, 123 S.Ct. at 1039. To obtain a COA, the petitioner must make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. 2253(c)(2). To make such a showing, the petitioner must demonstrate “reasonable jurists could debate whether ... the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Slack, 529 U.S. at 484, 120 S.Ct. 1595," }, { "docid": "22571850", "title": "", "text": "Allen asserted these as separate claims for relief in his second habeas petition and supporting memorandum of points and authorities filed in the district court. In addition, Allen specifically relied upon Lackey in the district court. Justice Stevens’ concurrence in Lackey makes no reference to age or infirmity, but only to tenure. Because each claim now occupies a distinct procedural sphere, we analyze them independently from that perspective as well. II. CERTIFICATE OF APPEALABILITY ON ALLEN’S AGE AND PHYSICAL INFIRMITY CLAIM Having been denied a certificate of appealability on his age and physical infirmity claim by the district court, Allen asks us to certify this claim, as he must secure a certificate of appealability before he can proceed with the merits of his claims. See 28 U.S.C. § 2253(c)(1); 9th Cir. R. 22-1; see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). A petitioner must make “a substantial showing of the denial of a constitutional right” to warrant a certificate of appeal-ability. 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at 484, 120 S.Ct. 1595; see also Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). To meet this “threshold inquiry,” Slack, 529 U.S. at 482, 120 S.Ct. 1595, the petitioner “ ‘must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.’ ” Lam-bright, 220 F.3d at 1025(alteration and emphasis in original) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (internal quotation marks omitted)). Even if a question is well settled in our circuit, a constitutional claim is debatable if another circuit has issued a conflicting ruling. See id. at 1025-26. “[T]he showing a petitioner must make to be heard on appeal is less" }, { "docid": "7585281", "title": "", "text": "process. Haynes filed a habeas petition on October 5, 2005, with the District Court for the Southern District of Texas. The district court denied habeas relief in an opinion on January 25, 2007. At the end of the extensive memorandum opinion, the district court appended a relatively short sua sponte denial of COA essentially reciting the standard of review and then concluding: Under the appropriate standard the court finds that Haynes has not shown that this court should certify any issue for appellate consideration. This court DENIES Haynes a COA on all the claims raised by his petition. Id. at *37 (emphasis in original). Haynes now seeks a COA from this court to challenge the district court’s denial of habeas relief. II. STANDARD OF REVIEW A petitioner must obtain a COA before appealing the district court’s denial of habeas relief. 28 U.S.C. § 2253(c). “This is a jurisdictional prerequisite because the COA statute mandates that ‘[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals ....’” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (Miller-El I) (quoting 28 U.S.C. § 2253(c)(1)). Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a COA may not issue unless “the applicant has made a substantial showing of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quoting 28 U.S.C. § 2253(c)). According to the Supreme Court, this requirement includes a showing that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Id. at 484,120 S.Ct. 1595 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). As the Supreme Court explained: The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the district" }, { "docid": "16435187", "title": "", "text": "post-AEDPA law governs the right to appeal. Id. Kunkle filed a notice of appeal in the instant case on November 1, 2002. Therefore, the AEDPA amended version of 28 U.S.C. § 2253 controls Kunkle’s right to appeal. Before an appeal may be entertained, a prisoner who was denied habeas relief in the district court must first obtain a COA from a circuit judge. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). Until a COA has been issued, a federal appeals court lacks jurisdiction to rule on the merits of a habeas appeal. Miller-El, 123 S.Ct. at 1039. To obtain a COA, the petitioner must make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. 2253(c)(2). To make such a showing, the petitioner must demonstrate “reasonable jurists could debate whether ... the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Slack, 529 U.S. at 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). The question of whether a COA should issue is a threshold inquiry that “requires an overview of the claims in the habeas petition and a general assessment of their merits.” Miller-El, 123 S.Ct. at 1039. A full consideration of the merits is not required, nor permitted, by § 2253(c). Id. The fact that a COA should issue does not mean that the petitioner will be entitled to habe-as relief because the “question is the de-batability of the underlying constitutional claim, not the resolution of that debate.” Id. at 1042. Under pre-AEDPA standards of review, this court will review the legal conclusions of the district court de novo and the state court’s findings of fact for clear error. See Soffar v. Cockrell, 300 F.3d 588, 592 (5th Cir.2002) (en banc). This court must accord a presumption of correctness to all findings of fact if they are supported by the record. Id.; see 28 U.S.C. § 2254(d)" }, { "docid": "22880481", "title": "", "text": "EDITH H. JONES, Circuit Judge: Bruce Wayne Houser, Texas prisoner # 460890, moves for a certificate of appeal-ability (COA) to appeal the dismissal of his 28 U.S.C. § 2254 petition for failure to exhaust administrative remedies and as procedurally barred. In that petition, Houser alleged due process violations in connection with prison disciplinary proceeding # 20020003898. Houser has demonstrated that reasonable jurists could debate whether the district court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000). However, he fails to establish that reasonable jurists could debate whether he has claimed a valid deprivation of his constitutional rights. See id. COA IS DENIED. The district court found that Houser failed to exhaust his state remedies because he had not filed his Step 1 grievance in a timely manner and, further, that he had failed to file a Step 2 grievance. Both of these findings are rendered questionable by the record, which indicates that Houser’s Step 1 grievance was received on the first working day beyond the fifteen-day period allotted for filing grievances and, per the Offender Grievance Operations Manual, was therefore timely. Also, contrary to the district court’s finding, the record contains a copy of Houser’s Step 2 grievance and the response issued by prison authorities. The district court’s determination of failure to exhaust is at best suspect. However, for a COA to issue, Houser must prove not only that reasonable jurists could debate whether the district court was correct in its procedural ruling, but also that reasonable jurists could find it debatable that the petition states a valid claim of the denial of a constitutional right. 28 U.S.C. § 2253(c); Slack, 529 at 484, 120 S.Ct. at 1603-04. This coequal portion of the appealability test “gives meaning to Congress’ requirement that a prisoner demonstrate substantial underlying claims.” Slack, id. Accordingly, we must consider whether “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 1040, 154 L.Ed.2d 931 (2003). Performing the" }, { "docid": "7870289", "title": "", "text": "(Michie 2000) (vesting exclusive jurisdiction in the Supreme Court of Virginia of petitions for writs of habeas corpus by petitioners held under a sentence of death), and was denied relief. Thereafter, he filed a petition pursuant to 28 U.S.C.A. § 2254 in the United States District Court for the Western District of Virginia. On March 28, 2002, the district court denied relief on that petition. Swisher seeks a COA as to numerous claims raised in the district court. We address the following three claims below: (1) that the Commonwealth knowingly elicited perjurious testimony; (2) that Swisher received ineffective assistance of counsel; and (3) that the Commonwealth failed to turn over Brady material. II. We may only issue a COA if Swisher has made a “substantial showing of the denial of a constitutional right.” 28 U.S.C.A. § 2253(c)(2) (West Supp.2002). Absent a COA, “an appeal may not be taken” to this court from the district court’s denial of relief on the § 2254 petition. Id. § 2253(c)(1); cf. Miller-El v. Cockrell, - U.S. -, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) (noting that a COA is “a jurisdictional prerequisite” to consideration of an appeal by a prisoner denied habeas relief in the district court). To make the requisite substantial showing, “a petitioner must ‘show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were “adequate to deserve encouragement to proceed further.’ ’” ” Id. (quoting Slack, 529 U.S. at 484, 120 S.Ct. 1595 (in turn quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983))). The Supreme Court has held that “[wjhere a district court has rejected [a petitioner’s] constitutional claims on the merits, ... [t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong” to obtain a COA. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Further, “[w]hen the district court denies a habeas petition on procedural" }, { "docid": "17393629", "title": "", "text": "gave rise to a “constitutional issue eoncern[ing] greater loss of liberty when he did not commit a prior crime of violence.” Jan. 1, 2009 Mot. for a COA, at 2. On January 13, 2009, the Supreme Court decided Chambers, holding that Illinois’s crime of failure to report for penal confinement fell outside the scope of the ACCA’s “violent felony” definition because the offense did not have “as an element the use, attempted use, or threatened use of physical force against the person of another.” 129 S.Ct. at 691. Mr. Shipp contends he is entitled to a reduction in his sentence pursuant to Chambers. II. We must first determine whether we have authority to review the issues raised by petitioner. Title 28 U.S.C. § 2253 governs our review of a district court’s denial of a habeas petition. Under § 2253, we must grant a COA to a habeas petitioner before he may proceed in our court. A COA may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“Before an appeal may be entertained, a prisoner who was denied habeas relief in the district court must first seek and obtain a COA from a circuit justice or judge.... 28 U.S.C. § 2253(c) permits the issuance of a COA only [upon] a ‘substantial showing of the denial of a constitutional right.’ ”); see also Adams v. LeMaster, 223 F.3d 1177, 1179 (10th Cir.2000) (“[W]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a [COA] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000))). The COA we previously issued is confined to" }, { "docid": "15107164", "title": "", "text": "Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Johnny William Cooper, Jr., seeks to appeal the district court’s order denying his Fed. R. Civ. P. 60(d)(3) motion seeking relief from the district court’s order denying Cooper’s 28 U.S.C. § 2255 (2012) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the motion states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595. We have independently reviewed the record and conclude that Cooper has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED" } ]

[ { "docid": "12868753", "title": "", "text": "court under § 105 should require all payments to unsecured creditors to be made through the office of the Chapter 12 standing trustee, there may well be exceptions. However, all unsecured creditors must be paid the same way, either directly or through the trustee’s office to preclude discriminatory treatment. Matter of Harris, 107 B.R. 204, 205 (Bankr.D.Neb.1989) (citations omitted); Matter of Foster, 670 F.2d 478 (5th Cir.1982); In re Dziedzic, 9 B.R. 424 (Bankr.S.D.Tex.1981). As to secured creditors, the proper result is less clear. Creditors holding liens in property of the bankruptcy estate are usually commercial enterprises represented by counsel so there is not always the same need for trustee monitoring of payments. There are several instances in which I have previously held that payments may be made by a Chapter 12 debtor directly to creditors, such as where imposition of trustee’s fees would result in a taking of collateral, or where the creditors involved are low in number, are sophisticated, and are able to effectively monitor payments by the debtor. See Matter of Wells, BK94-40339 (Bankr.D.Neb.1994); Matter of Harris, 107 B.R. 204, 207 (Bankr.D.Neb.1989). On the other hand, in a complex Chapter 12 case with many secured and unsecured creditors, orderly administration and monitoring of the case will be facilitated if all payments are made through the office of the Chapter 12 trustee. The plan of reorganization currently before the court provides that payments to unsecured creditors will be made through the office of the Chapter 12 trustee. Therefore, the only issue before the court is whether payments to secured creditors in this case should be required to be made through the trustee’s office. I conclude that, under the facts of this case, payments to secured creditors should not be required to be made through the office of the trustee. There are only three creditors in this case, two of which are governmental subdivisions who are sophisticated creditors with fully secured claims. The third creditor is the FmHA, which is also a sophisticated creditor. None of the secured creditors have objected to direct payment of their claims. Given the" } ]

[ { "docid": "4137039", "title": "", "text": "for direct payments to impaired secured creditors.”); Dist. Ct. Order at 1 (“The main issue on appeal is whether [Wagner ] requires confirmation of a Chapter 12 plan that provides for direct payments on impaired secured claims by a debtor to the creditors, thereby avoiding payment of the standing trustee’s statutory fees.”). We read the lower courts’ decisions to hold that such direct payment plans may be confirmed under Wagner, provided all the requirements of 11 U.S.C. § 1225 are met, including a plan feasibility assessment. See id. § 1225(a)(6). The UST incorrectly claims that the bankruptcy court failed to make an adequate feasibility determination in this case. The bankruptcy court clearly indicated that the plans were feasible and that the direct payments at issue were permissible so long as they did not interfere with feasibility. Regarding the trustees’ objections to the direct payments given the debtors’ avoidance of trustee’s fees, the court admitted the possible negative impact on the Chapter 12 administrative apparatus if “debtors are given free reign to circumvent the trustee’s fees.” Id. at 11. However, based on Wagners rejection of similar reasoning, see 36 F.3d at 726 (finding no support in the bankruptcy code for the reasoning that “Congress could not have intended debtors to make direct payments to creditors” just because “the trustee will receive nothing” if such payments are made), the bankruptcy court concluded that “the financial impact of allowing direct payments on the stability of the Chapter 12 program does not appear to be a deciding factor in allowing the Debtors to pay their creditors directly.” Bankr.Ct. Order at 11; see also Beard, 45 F.3d at 118-120 (permitting Chapter 12 debtor to pay directly the secured portion of undersecured claims and rejecting trustee’s argument that lack of trustee remuneration would undermine Chapter 12 administrative scheme and Congressional intent). The bankruptcy court indirectly addressed feasibility by noting that, if the secured creditors in the instant ease had objected to the direct payments, “the results in the present cases may have been different .” Bankr.Ct. Order at 12 n. 4. Later in its opinion, the" }, { "docid": "18013969", "title": "", "text": "the bankruptcy proceedings. Id. Section 1327(a) of the Bankruptcy Code, because it provides that a confirmed plan binds all creditors, creates a res judicata effect that prevents the bankruptcy court from reconsidering matters that were disposed of by the confirmed plan. Strong v. I.R.S. (In re Strong), 203 B.R. 105, 113 (Bankr.N.D.Ill.1996). The failure to raise an objection at the confirmation hearing or to appeal from the confirmation order should preclude a creditor from attacking the plan or any provision therein in a subsequent proceeding. Id. This applies to Daday who was scheduled as a creditor, albeit listed by the Debtor as unsecured, rather than secured. Daday was sent notice of the confirmation hearing, but he did not object to confirmation of the Debtor’s plan which was confirmed. Procedurally, a secured creditor seeking distribution through the payments made to the standing trustee from a Chapter 13 estate must file a proof of claim. Bankruptcy Rule 3021 states that distributions pursuant to plans may be made only to creditors whose pre-petition claims are allowed after confirmation. An allowed claim under 11 U.S.C. § 502 is one filed pursuant to 11 U.S.C. § 501, and therefore, for both secured and unsecured claims to be paid, they must be allowed after being filed under § 501. Therefore, as a practical matter, a secured creditor must file a claim to participate in and receive distributions under a Chapter 13 plan from the standing trustee. Id. at 112. Sometimes, debtors propose to pay secured creditors directly, rather than through plan payments they make to the standing Chapter 13 trustee, which are in turn remitted to creditors. The amended plan confirmed here did not specify such direct payments from the Debtor to Da-day. It is undisputed that Daday is a creditor of the Debtor. In the parties’ Joint Pretrial Statement submitted to this Court on October 20, 1999, in the section of admitted facts is the statement, “The Defendant [Daday] is a creditor of the plaintiff debtor.” See Joint Pretrial Statement at p. 2. Even had this not been included in the Pretrial Statement, it is" }, { "docid": "4137040", "title": "", "text": "Id. at 11. However, based on Wagners rejection of similar reasoning, see 36 F.3d at 726 (finding no support in the bankruptcy code for the reasoning that “Congress could not have intended debtors to make direct payments to creditors” just because “the trustee will receive nothing” if such payments are made), the bankruptcy court concluded that “the financial impact of allowing direct payments on the stability of the Chapter 12 program does not appear to be a deciding factor in allowing the Debtors to pay their creditors directly.” Bankr.Ct. Order at 11; see also Beard, 45 F.3d at 118-120 (permitting Chapter 12 debtor to pay directly the secured portion of undersecured claims and rejecting trustee’s argument that lack of trustee remuneration would undermine Chapter 12 administrative scheme and Congressional intent). The bankruptcy court indirectly addressed feasibility by noting that, if the secured creditors in the instant ease had objected to the direct payments, “the results in the present cases may have been different .” Bankr.Ct. Order at 12 n. 4. Later in its opinion, the bankruptcy court expanded upon the impact of removing trustee oversight on direct payments: [Sjecured creditors, both impaired and unimpaired, are nearly always sophisticated and often represented by experienced counsel. The need for the trustee to monitor payments made directly to the secured creditors is less significant in assuring the success of a Chapter 12 plan. Thus, if the court is reasonably certain that direct payments to the creditors will not interfere with the statutory duties of the Trustee, nor contribute to the likelihood of the failure of the farmers’ efforts to organize or their noncompliance with the confirmed plan, then there is no reason why the court should not approve the Debtors’ request to directly pay their administrative and [secured] creditors. However, it is unlikely that the court would ever approve direct payments to unsecured creditors, without the debtor clearly demonstrating the existence of good cause and the creditors’ affirmative consent. Id. at 13-14. While the bankruptcy court did order that child arrearage payments to a particular unsecured creditor be made through the trustee, see" }, { "docid": "12868745", "title": "", "text": "MEMORANDUM JOHN C. MINAHAN, Jr., Bankruptcy Judge. Before the court is the Second Amendment to Chapter 12 Plan of Reorganization and Request for Confirmation of Plan, and the Trustee’s Objections to Confirmation. The Trustee’s Objections are overruled. I conclude that debtors may make payments to secured creditors directly and not through the Chapter 12 trustee. FINDINGS OF FACT There are only three creditors in this Chapter 12 case — Dawson County, Nebraska (“Dawson County”); Lincoln County, Nebraska (“Lincoln County”); and the Farmers Home Administration (“FmHA”). The claims of Dawson County and Lincoln County are for personal property taxes and/or real estate taxes, and are both fully secured. The claim of the FmHA is in regard to a real estate mortgage, which claim is part secured and part unsecured. Under the Second Amendment to Chapter 12 Plan, the debtors propose to pay Dawson County, Lincoln County, and the secured portion of the FmHA’s claim directly, rather than through the office of the Chapter 12 trustee. The debtors propose to pay the unsecured portion of the FmHA’s claim from disposable income through the office of the Chapter 12 trustee. The trustee has objected to the proposed direct payment of secured claims, asserting that such proposal is contrary to and in violation of various sections of Titles 11 and 28 of the United States Code. DISCUSSION The Chapter 12 trustee is entitled to no fees on payments made directly to creditors by the debtor. See 28 U.S.C. § 586 (1995). The trustee argues that the proposed direct payments to creditors are in violation of the Bankruptcy Code and Title 28 of the United States Code. I conclude that the position of the trustee is contrary to the holding of the Eighth Circuit Court of Appeals in In re Wagner, 36 F.3d 723 (8th Cir.1994). I also conclude that such position is contrary to the previous holdings of this court, which are consistent with In re Wagner. In In re Wagner, the debtors’ Chapter 12 plans provided for direct payments to impaired secured creditors. In re Wagner, 36 F.3d at 725. The bankruptcy court" }, { "docid": "4137041", "title": "", "text": "bankruptcy court expanded upon the impact of removing trustee oversight on direct payments: [Sjecured creditors, both impaired and unimpaired, are nearly always sophisticated and often represented by experienced counsel. The need for the trustee to monitor payments made directly to the secured creditors is less significant in assuring the success of a Chapter 12 plan. Thus, if the court is reasonably certain that direct payments to the creditors will not interfere with the statutory duties of the Trustee, nor contribute to the likelihood of the failure of the farmers’ efforts to organize or their noncompliance with the confirmed plan, then there is no reason why the court should not approve the Debtors’ request to directly pay their administrative and [secured] creditors. However, it is unlikely that the court would ever approve direct payments to unsecured creditors, without the debtor clearly demonstrating the existence of good cause and the creditors’ affirmative consent. Id. at 13-14. While the bankruptcy court did order that child arrearage payments to a particular unsecured creditor be made through the trustee, see id. at 14-15, the court apparently considered the lack of trustee oversight and remuneration for the other direct payments to be of little importance with respect to the feasibility of the Chapter 12 plans. Accordingly, we hold that the lower courts correctly applied Wagner not to mandate confirmation of all direct payment plans, but rather to permit direct payments which comport with feasibility requirements under the bankruptcy code. Conclusion For the reasons stated, we affirm the order of the district court. . The Honorable E. Richard Webber, United States District Judge for the Eastern District of Missouri. . The Honorable David P. McDonald, United States Bankruptcy Judge for the Eastern District of Missouri. . Under Chapter 12, a debtor typically proposes a financial reorganization plan to reschedule debt payments over a three-year post-petition period. See 11 U.S.C. § 1222(c) (permitting repayment plans of up to five years upon court approval and showing for cause). The chapter’s principal benefit is that families may retain their farms while reorganizing. See id. §§ 1203, 1204. . The UST" }, { "docid": "4137037", "title": "", "text": "review, we hold that the courts below did not err in their interpretation and application of Wagner. First, we do not read Wagner’s textual analysis of the Chapter 12 statutes as limited to its own particular procedural context. In examining the bankruptcy code (prior to any consideration of the plans themselves or any attendant trustee objections), this court recognized in Wagner that the code “does not forbid plan provisions allowing direct payments by the debtor to impaired secured creditors.” 36 F.3d at 726. In fact, as this court noted, the language of the code expressly anticipates that such payments may be made. See id. (noting that 11 U.S.C. § 1226(c) requires the trustee to make payments to creditors under the plan “[e]xcept as otherwise provided in the plan or in the order confirming the plan ” (emphasis added), while id. § 1225(a)(5)(B)(ii) addresses the treatment of secured claims by referring to “property to be distributed by the trustee or the debtor under the plan.” (emphasis added)). Accord. In re Beard, 45 F.3d 113, 119 (6th Cir.1995) (Beard) (comparing Chapter 12 code provisions and concluding that “Congress had constructed a scheme that envisioned that debtors would at times be able to pay their debts directly to their creditors, allowing them to bypass the trustee.”). We find nothing in Wagner to indicate that its statutory analysis only applied to Chapter 12 plans matching Wagner’s procedural posture, where the trustee apparently had not objected to the direct payment provisions prior to confirmation. Accordingly, we are not convinced by the standing trustee’s arguments that Wagner is procedurally distinguishable from the instant case. Next, we do not believe that the courts below misinterpreted Wagner. Although both the bankruptcy court and the district court used somewhat imprecise language in defining Wagner’s scope, at no point did either of the lower courts state that Wagner established an “absolute right” for Chapter 12 debtors to make direct payments to impaired secured creditors. See Bankr.Ct. Order at 11 (“The language used by the Court in Wagner prevents this Court from denying confirmation of a Chapter 12 plan that provides" }, { "docid": "7277029", "title": "", "text": "plan “complies with the provisions of this chapter.” 11 U.S.C. § 1325(a)(1) (2006). Section 1325(a)(6) requires that the debtor “be able to make all payments under the plan and to comply with the plan.” Section 1326(c) states, “[ejxcept as otherwise provided in the plan or in the order confirming the plan, the trustee shall make payments to creditors under the plan.” The language “except as otherwise provided ... in the order confirming the plan” has been read to allow debtors to make payments directly to creditors. In Matter of Foster, 670 F.2d 478 (5th Cir. 1982), the court held that although Chapter 13 ordinarily provides that funds be disbursed by the Chapter 13 trustee, a bankruptcy judge has discretion to allow direct disbursement by the debtor. Other cases are consistent. See In re Gregory, 143 B.R. 424, 426-27 (Bankr.E.D.Tex.1992) (upholding direct payment of priority IRS claim over the trustee’s objection because the IRS agreed; the IRS was a sophisticated creditor that can protect itself, and because a single payment was involved rather than a series of payments that would benefit from trustee oversight and require continued work by the trustee); In re Reid, 179 B.R. 504, 508-509 (finding that the debtors’ asserted interest in avoiding trustee fees was insufficient to overcome the potential abuse of the system allowed by direct payment and the Bankruptcy Code’s preference for payment through a trustee); Barber, 191 B.R. at 885 (acknowledging that “numerous courts have recognized that decisions to allow a debtor to act as a disbursing agent for plan payments, thereby endangering the payment of fees and commissions necessary to the operation of the trustee program is a significant concern”); In re Slaughter, 188 B.R. 29, 31 (Bankr.D.N.D. 1995) (noting that “[ajlthough there is no express statutory prohibition preventing direct payments, the presumption has always been for distribution made by the trustee”) (citing S.Rep. No. 989, 95th Cong., 2d Sess. 142 (1978), reprinted in 1978 U.S.C.C.A.N. 5787). In Perez, the bankruptcy court interpreted section 1326(c) as consistent with the Local Rule and Procedures in presuming that most debtors will pay creditors through the" }, { "docid": "13941635", "title": "", "text": "payment directly to some secured creditors, provided that the plan meets all the confirmability requirements set forth in § 1325(a).”); In re Slaughter, 188 B.R. 29, 31 (Bkrtcy.D.N.D.1995) (“[T]his court, cannot see any statutory prohibition that prevents a chapter 13 debtor from fashioning plan terms providing for direct payments to impaired secured creditors.”); but see In re Fulkrod, 973 F.2d 801 (9th Cir.1992) (“[W]e now hold that Chapter 12 of the bankruptcy code does not authorize a debtor to make payments directly to creditors with claim modified by a plan of reorganization in order to avoid paying the bankruptcy trustee the statutory fee under 28 U.S.C. § 586.”). “Nonetheless, § 1326[ (c) ] also ‘makes it clear that the Chapter 13 trustee is normally to make distributions to creditors of the payments made under the plan by the debtor.’ ” Matter of Foster, 670 F.2d at 486 (quoting S.Rep. No. 989, 95th Cong., 1st Sess. 142 (1978), U.S.Code Cong. & Admin.News 1978, pp. 5787, 5928); see In re Slaughter, 188 B.R. at 31 (“Although there is no express statutory prohibition preventing direct payments, the presumption has always been for distribution made by the trustee.”); In re Reid, 179 B.R. at 507 (“[T]he general rule requires that debts provided for in a Chapter 13 plan be paid through the Chapter 13 Trustee.”). Generally, courts have permitted debtors to make direct payments to creditors under limited or unique circumstances: Deviation from [the] presumption [for distributions to be made by the trustee] has been allowed by courts where there appears some significant reason for doing so. Matter of Foster, 670 F.2d 478, 486 (5th Cir.1982). In determining whether to confirm a plan providing for direct payments, courts in the past have developed detailed criteria, the foremost of which are: (1) whether the creditor receiving direct payments has the economic incentive and ability to monitor future direct payments; (2) whether the creditor receiving direct payments is capable of taking the requisite action of protecting its interests in the event of a default; (3) the impact of direct payments on plan feasibility and whether, in" }, { "docid": "1194778", "title": "", "text": "general limitations found in sections 1225(a)(1) and 1225(a)(3). Through section 1225(a)(1), for example, direct payments may only be made if they do not discriminate unfairly, that is, if they comply with section 1222(a)(3). And direct payments provisions, as well as the plan within which they appear, must be proposed in good faith to comply with section 1225(a)(3). The lower court found that debtors’ proposed direct payments to Metropolitan complied with section 1222(a)(3) because Metropolitan agreed to the direct payments and because the debtors proposed to pay Metropolitan the stipulated value of its secured claim. Erickson, 77 B.R. at 748. The lower court also found that the proposed direct payments to Metropolitan satisfied section 1225(a)(3)’s good faith requirement because Metropolitan agreed to direct payment and because of the self-monitor and remedy device included in the direct payment scheme. Id. These findings are not clearly erroneous. None of the parties have referred this Court to any other code limitations on a bankruptcy court’s discretion to allow debtors to make direct payments under their Chapter 12 plans and I can find none. The trustees argue, however, that a body of case law developed under Chapter 13, and more recently Chapter 12, acts to limit a bankruptcy court’s discretion. Specifically, the trustees argue that this body of case law supports their position that a bankruptcy court can allow debtors to pay only unmodified secured claims directly. I disagree. The Chapter 13 cases cited by the trustees were decided under a prior version of section 586(e)(2) which provided that the trustee “shall collect such percentage fee from all payments under plans.” 92 Stat. 2664 (emphasis added). Construing this language, the Chapter 13 cases held that it did not matter whether the trustee or the debtors made the payments when determining whether a payment is made “under” or “outside” the plan for purposes of assessing the Chapter 13 trustee fee. See Matter of Foster, 670 F.2d 478, 486-89 (5th Cir.1982); In re Case, 11 B.R. 842, 845-47 (Bankr.D. Utah 1981). All parties agree that whether the trustee or the debtor makes the payment is the critical" }, { "docid": "12868752", "title": "", "text": "rights. For example, unsecured creditors in Chapter 12 cases are typically unrepresented by counsel and are unsophisticated in bankruptcy rule procedures. Therefore, the court should facilitate meaningful participation by the Chapter 12 trustee in Chapter 12 cases. In addition, the receipt of fees is necessary to meet the staffing and overhead costs of the trustee’s office. Under 28 U.S.C. § 586, a trustee is not entitled to be paid a fee from payments made directly to creditors. Thus, if bankruptcy courts permitted all payments in Chapter 12 cases to be made directly, the trustee’s office would be deprived of its main source of revenue and would be unable to meet its costs and expenses. In order to assure that these problems do not occur, I conclude that bankruptcy judges have the discretion and power, pursuant to § 105 of the Bankruptcy Code, to require payments to be made through the office of the Chapter 12 trustee, and should exercise this discretion where necessary to prevent abuse. Although I conclude, as a general matter, that the court under § 105 should require all payments to unsecured creditors to be made through the office of the Chapter 12 standing trustee, there may well be exceptions. However, all unsecured creditors must be paid the same way, either directly or through the trustee’s office to preclude discriminatory treatment. Matter of Harris, 107 B.R. 204, 205 (Bankr.D.Neb.1989) (citations omitted); Matter of Foster, 670 F.2d 478 (5th Cir.1982); In re Dziedzic, 9 B.R. 424 (Bankr.S.D.Tex.1981). As to secured creditors, the proper result is less clear. Creditors holding liens in property of the bankruptcy estate are usually commercial enterprises represented by counsel so there is not always the same need for trustee monitoring of payments. There are several instances in which I have previously held that payments may be made by a Chapter 12 debtor directly to creditors, such as where imposition of trustee’s fees would result in a taking of collateral, or where the creditors involved are low in number, are sophisticated, and are able to effectively monitor payments by the debtor. See Matter of Wells," }, { "docid": "10280147", "title": "", "text": "MEMORANDUM OPINION LEWIS M. KILLIAN, Jr., Bankruptcy Judge. THIS MATTER came on to be heard upon the confirmation of the joint debtor’s Chapter 12 plan of reorganization. The trustee challenged the debtor’s right to make direct payments to impaired secured creditors rather than submitting the payments to the trustee for distribution under the Chapter 12 plan. Having reviewed the statutory and case authority on this issue, this Court concurs with the opinion of the United States District Court for the Southern District of South Dakota, in In Re Erickson Partnership, 83 B.R. 725 (S.D.1988). In that case, the United States Trustee and the standing Chapter 12 Trustee appealed from a Bankruptcy Court confirmation of the debtors’ Chapter 12 plan which allowed the debtors to make direct payments to a secured creditor holding a modified claim. The concern of the trustees was that if the debtor were allowed to make direct payments to creditors, the debtor could thereby, to that extent, avoid the trustee’s fee, assessed on payments made through the trustee in accordance with Title 28 U.S.C. 586(e)(2). It was conceded that the Chapter 12 debtor had the right to make direct payments under reorganization plans, but the parties disagreed on the circumstances under which such payments could be made; that is, whether Chapter 12 places any limits on a Bankruptcy Court’s discretion to approve the direct payments. The debtors contended that by its language, Chapter 12 allows direct payment on secured claims without limitation. The trustees argued that the language of Chapter 12 does not allow direct payment, but that direct payments on unmodified secured claims may be made based on a body of Chapter 18 case law construing Chapter 13 provisions similar to those in Chapter 12. It was noted in Erickson that the Chapter 13 cases relied upon by the trustees were decided under a prior version of Section 586 and thus inapplicable to the present issue. There are some Chapter 12 cases which apply this same rationale, holding that all payments made under the plan come through the trustee and are thus subject to the commission," }, { "docid": "7277076", "title": "", "text": "to make payment directly to some secured creditors, provided that the plan meets all the confirmability requirements set forth in § 1325(a).\"); In re Slaughter, 188 B.R. 29, 31 (Bankr.D.N.D.1995) (considering \"(1) whether the creditor receiving direct payments has the economic incentive and ability to monitor future direct payments; (2) whether the creditor receiving direct payments is capable of taking the requisite action of protecting its interests in the event of a default; (3) [and] the impact of direct payments on plan feasibility and whether, in the case of a Chapter 13 debtor engaged in business, meaningful reorganization is dependent upon direct payment”). The courts have disagreed as to the showing necessary to justify a deviation from the presumption in favor of conduit rather than direct payments. Compare In re Barber, 191 B.R. 879, 885-886 (D.Kan.1996) (concluding that “deviation from the normal periodic payments to the trustee should only be departed from when the debtor can demonstrate a significant reason for doing so”) with In re Vigil, 344 B.R. 624, 630 (Bankr.D.N.M. 2006) (stating that while the Code creates a presumption in favor of payments by the trustee, the debtors “need not demonstrate compelling circumstances in order to justify confirmation of a plan that provides for direct payment according to the contract terms to a creditor • that is fully secured by personal property, provided the Debtors do not otherwise seek to modify the creditor’s claim and provided that the plan otherwise meets all requirements for confirmation”) (emphasis added). . The trustee argues that this argument is not properly before this court. (Docket Entry No. 26 at 16). However, the debtors made the same argument to the bankruptcy court. (Docket Entry No. 10-4 at 3). . [A plan may,] notwithstanding paragraph (2) of this subsection [the antimodification provision], 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). ." }, { "docid": "7277075", "title": "", "text": "No. 21), and the trustee, David Peake, has submitted a reply brief, (Docket Entry No. 26). Two mortgage companies, Bank of America Home Loan Services and Wells Fargo Home Mortgage, and the Federal Home Loan Mortgage Corporation have filed an amicus brief. (Docket Entry No. 27). The amici were not involved in the debtors’ loan. The amici state that the debtors’ mortgage company, ABN AMRO Mortgage Group, is in accord with the amicus brief. {Id. at ii, n. 1). . Sections 1322 and 1326 of the Bankruptcy Code, 11 U.S.C. §§ 1322, 1326, were not changed by the 2005 Bankruptcy Abuse Prevention and Consumer Protection Act, (\"BAPCPA”). . Other courts have reached similar results, holding that' the feasibility test in section 1325(a)(6) limits the extent to which a Chapter 13 debtor can make payments directly to creditors. See, e.g., In re Aberegg, 961 F.2d 1307, 1309 (7th Cir.1992) (discussing § 1326(c) and § 1322(a)(1) and finding that the language in § 1322(a)(1) has \"been uniformly interpreted as giving bankruptcy courts the discretion to permit debtors to make payment directly to some secured creditors, provided that the plan meets all the confirmability requirements set forth in § 1325(a).\"); In re Slaughter, 188 B.R. 29, 31 (Bankr.D.N.D.1995) (considering \"(1) whether the creditor receiving direct payments has the economic incentive and ability to monitor future direct payments; (2) whether the creditor receiving direct payments is capable of taking the requisite action of protecting its interests in the event of a default; (3) [and] the impact of direct payments on plan feasibility and whether, in the case of a Chapter 13 debtor engaged in business, meaningful reorganization is dependent upon direct payment”). The courts have disagreed as to the showing necessary to justify a deviation from the presumption in favor of conduit rather than direct payments. Compare In re Barber, 191 B.R. 879, 885-886 (D.Kan.1996) (concluding that “deviation from the normal periodic payments to the trustee should only be departed from when the debtor can demonstrate a significant reason for doing so”) with In re Vigil, 344 B.R. 624, 630 (Bankr.D.N.M. 2006) (stating that" }, { "docid": "14783175", "title": "", "text": "of modifying the rights of its secured creditors and paying the claim within the life of the plan or curing defaults while maintaining current payments. The Chapter 12 debtor not only may modify the rights of secured creditors but may also pay those claims over a period of time exceeding the life of the plan. 11 U.S.C. § 1222(b)(9). When the plan has run its established life and the debtor has completed the payments it contemplates, the Chapter 12 debtor receives a discharge of the obligations dealt with by the plan, except as to the secured claims on which payments extend beyond the life of the plan. 11 U.S.C. § 1228(a). The requirements for confirmation of a Chapter 12 plan are found at 11 U.S.C. § 1225. Nothing in the text of Chapter 12 or in this section specifically requires payments to flow through the trustee. To an extent, however, this is implicit within Chapter 12’s framework. This implicit assumption is codified as § 1226, which states: Except as otherwise provided in the plan or in the order confirming the plan, the trustee shall make payments to creditors under the plan. 11 U.S.C. § 1226(c). Consequently, Congress recognized that while the Chapter 12 Trustee would generally disburse payments to creditors, it might not be the disbursing agent in all cases or with respect to all claims. Unfortunately, the Bankruptcy Code does not provide any more specific guidance concerning which claims should be paid through the trustee and which may be paid directly by the debtor. Because of this, the case law which has developed, under both Chapter 12 and Chapter 13, recognizes that the question is one which is committed to the discretion of the court. In re Erickson Partnership, 83 B.R. 725 (D.S.D.1988). In exercising this court’s discretion, we should take into consideration the tension, inherent in the often competing interests of the debtor and the trustee, which has been created by the framework of Chapter 12. Given the way the trustee’s compensation is determined by the United States Trustee, if payments are not made through the trustee, they" }, { "docid": "4137038", "title": "", "text": "Cir.1995) (Beard) (comparing Chapter 12 code provisions and concluding that “Congress had constructed a scheme that envisioned that debtors would at times be able to pay their debts directly to their creditors, allowing them to bypass the trustee.”). We find nothing in Wagner to indicate that its statutory analysis only applied to Chapter 12 plans matching Wagner’s procedural posture, where the trustee apparently had not objected to the direct payment provisions prior to confirmation. Accordingly, we are not convinced by the standing trustee’s arguments that Wagner is procedurally distinguishable from the instant case. Next, we do not believe that the courts below misinterpreted Wagner. Although both the bankruptcy court and the district court used somewhat imprecise language in defining Wagner’s scope, at no point did either of the lower courts state that Wagner established an “absolute right” for Chapter 12 debtors to make direct payments to impaired secured creditors. See Bankr.Ct. Order at 11 (“The language used by the Court in Wagner prevents this Court from denying confirmation of a Chapter 12 plan that provides for direct payments to impaired secured creditors.”); Dist. Ct. Order at 1 (“The main issue on appeal is whether [Wagner ] requires confirmation of a Chapter 12 plan that provides for direct payments on impaired secured claims by a debtor to the creditors, thereby avoiding payment of the standing trustee’s statutory fees.”). We read the lower courts’ decisions to hold that such direct payment plans may be confirmed under Wagner, provided all the requirements of 11 U.S.C. § 1225 are met, including a plan feasibility assessment. See id. § 1225(a)(6). The UST incorrectly claims that the bankruptcy court failed to make an adequate feasibility determination in this case. The bankruptcy court clearly indicated that the plans were feasible and that the direct payments at issue were permissible so long as they did not interfere with feasibility. Regarding the trustees’ objections to the direct payments given the debtors’ avoidance of trustee’s fees, the court admitted the possible negative impact on the Chapter 12 administrative apparatus if “debtors are given free reign to circumvent the trustee’s fees.”" }, { "docid": "13941634", "title": "", "text": "the United States at the same rate of basic pay to perform similar services during the same period of time; and (B) a percentage fee not to exceed— (i) in the case of a debtor who is not a family farmer, ten percent; or ... (2) Such individual shall collect such percentage fee from all payments received by such individual under plans in the cases under chapter 12 or 13 of title 11 for which such individual serves as standing trustee. See generally In re BDT Farms Inc., 21 F.3d 1019 (10th Cir.1994) (discussing § 586); In re Schollett, 980 F.2d 639 (10th Cir.1992) (reasonableness of standing trustee’s fee is not subject to judicial review). Based upon a plain reading of § 1326(e), Congress clearly envisioned “the possibility of direct disbursements ‘under the plan’ by the Chapter 13 debtor.” Matter of Foster, 670 F.2d at 486; see Matter of Aberegg, 961 F.2d at 1309 (The language of the bankruptcy code “has been uniformly interpreted as giving bankruptcy courts the discretion to permit debtors to make payment directly to some secured creditors, provided that the plan meets all the confirmability requirements set forth in § 1325(a).”); In re Slaughter, 188 B.R. 29, 31 (Bkrtcy.D.N.D.1995) (“[T]his court, cannot see any statutory prohibition that prevents a chapter 13 debtor from fashioning plan terms providing for direct payments to impaired secured creditors.”); but see In re Fulkrod, 973 F.2d 801 (9th Cir.1992) (“[W]e now hold that Chapter 12 of the bankruptcy code does not authorize a debtor to make payments directly to creditors with claim modified by a plan of reorganization in order to avoid paying the bankruptcy trustee the statutory fee under 28 U.S.C. § 586.”). “Nonetheless, § 1326[ (c) ] also ‘makes it clear that the Chapter 13 trustee is normally to make distributions to creditors of the payments made under the plan by the debtor.’ ” Matter of Foster, 670 F.2d at 486 (quoting S.Rep. No. 989, 95th Cong., 1st Sess. 142 (1978), U.S.Code Cong. & Admin.News 1978, pp. 5787, 5928); see In re Slaughter, 188 B.R. at 31 (“Although there" }, { "docid": "23167504", "title": "", "text": "require determination of three questions. First, can a debtor make direct payments to a creditor at all? Second, if direct payments are allowed, may impaired claims also be paid directly? Finally, if an impaired claim can be paid directly, is the trustee entitled to a percentage fee for the amount of the debt' which was paid directly to the creditor? A. Textual Analysis 1. Direct Payment of Secured Claims Resolution of the first issue begins with close analysis of the statutory language itself. Three statutory sections are relevant to this inquiry. First, section 1225(a)(5)(B)(ii) provides: (a) Except as provided in subsection (b), the court shall confirm the plan if— (5) with respect to each allowed secured claim provided for by the plan— (B)(ii) the value, as of the effective date of the plan, of property to be distributed by the trustee or the debtor under the plan on account of such claim is not less than the allowed amount of such claim. 11 U.S.C. § 1225(a)(5)(B)(ii) (1988) (emphasis added). The plain language of this section makes a provision for payment of secured claims by either the trustee or the debtor. The use of the word “shall” in subsection (a) indicates that Congress meant to direct mandatory confirmation of Chapter 12 reorganization plans if any of the three alternative scenarios presented in subsections (A), (B), or (C) were satisfied. Further, by excepting from the constraints of subsection (a) the provisions of subsection (b), which deals with unsecured claims, Congress has suggested that mandatory confirmation of direct debtor payment is available only with respect to secured claims. Thus, subsection (a) removes court discretion with respect to plans authorizing direct payment of secured claims under the circumstances there delineated. Therefore, it can safely be said that while payment through a trustee may be the typical, and indeed the preferred method of payment, such a distribution method is not always required. An examination of the analogous provision in Chapter 13 is also instructive, for it has been recognized that although Chapter 12 addressed specifically the problems of the family farmer, it incorporated many of" }, { "docid": "18756599", "title": "", "text": "code precludes Chapter 12 plans from allowing debtors to make direct payments to impaired secured creditors. We disagree. In our view, the code does not prohibit plan provisions of this sort. Section 1226 governs payments made pursuant to a Chapter 12 bankruptcy plan. 11 U.S.C. § 1226 (1988). Under this section, the trustee is required to make payments to creditors under the plan, “[e]xcept as otherwise provided in the plan or in the order confirming the plan.” Id. § 1226(c). Moreover, Section 1226, which sets out the requirements for a Chapter 12 plan, in addressing the treatment of secured claims refers to “property to be distributed' by the trustee or the debtor under the plan.” Id. § 1225(a)(5)(B)(ii). When these two sections are read in conjunction, it becomes clear that the code does not forbid plan provisions allowing direct payments by the debtor to impaired secured creditors. Accord In re Erickson Partnership, 77 B.R. 738, 746 (Bankr.D.S.D.1987), aff'd, 83 B.R. 725 (D.S.D.1988), appeal dismissed, 871 F.2d 1092 (8th Cir.1988) (table); In re Hagensick, 73 B.R. 710, 713 (Bankr.N.D.Iowa 1987). Armstrong relies heavily on Fulkrod v. Savage (In re Fulkrod), 973 F.2d 801 (9th Cir.1992) (per curiam), in which the Ninth Circuit held that a Chapter 12 debtor is not authorized to make direct payments to impaired secured creditors in order to avoid paying trustee’s fees. In so holding, the Court emphasized the fee payment structure established by 28 U.S.C. § 586. We believe the issue of whether a Chapter 12 plan may allow the debtor to make direct payments to impaired secured creditors is distinct from the issue of whether such payments are subject to trustee’s fees. More important, the conclusion reached by the Ninth Circuit was not based upon a close textual analysis of the Chapter 12 statutes but upon policy grounds. The Court inferred that, because Congress requires the trustee to be financed by a percentage fee from the assets of the bankruptcy estate rather than by taxpayer funds, and because the trustee will receive nothing if the debtor is entitled to make direct payments to impaired creditors," }, { "docid": "12868746", "title": "", "text": "claim from disposable income through the office of the Chapter 12 trustee. The trustee has objected to the proposed direct payment of secured claims, asserting that such proposal is contrary to and in violation of various sections of Titles 11 and 28 of the United States Code. DISCUSSION The Chapter 12 trustee is entitled to no fees on payments made directly to creditors by the debtor. See 28 U.S.C. § 586 (1995). The trustee argues that the proposed direct payments to creditors are in violation of the Bankruptcy Code and Title 28 of the United States Code. I conclude that the position of the trustee is contrary to the holding of the Eighth Circuit Court of Appeals in In re Wagner, 36 F.3d 723 (8th Cir.1994). I also conclude that such position is contrary to the previous holdings of this court, which are consistent with In re Wagner. In In re Wagner, the debtors’ Chapter 12 plans provided for direct payments to impaired secured creditors. In re Wagner, 36 F.3d at 725. The bankruptcy court had dismissed the bankruptcy cases involved in In re Wagner, holding that trustee fees can not be avoided by direct payment to impaired secured creditors. Id. The district court reversed, holding that the provisions of the Chapter 12 plans providing for direct payment to impaired secured creditors were valid, and such payments were not subject to trustee’s fees. Id. On appeal, the Eighth Circuit Court of Appeals affirmed the district court ruling, holding that direct payments to impaired secured creditors are not prohibited by the Bankruptcy Code. In re Wagner, 36 F.3d at 726 (citations omitted). Specifically, the court in In re Wagner held that direct payments were not prohibited by §§ 1225 and 1226 of the Bankruptcy Code, two of the sections asserted by the trustee in the present case. Id. I agree with this holding, and, of course, am bound to follow it. Section 1225(a)(5) contemplates distribution by either the trustee or the debtor, and § 1226 deals with payments actually received by the trustee and expressly contemplates payments made by parties other" }, { "docid": "8382334", "title": "", "text": "trustee] under plans in chapter 12 or 13.... ” Plainly, there appears to the court a stark conflict between the Debtors administrative intentions expressed in later plan provisions and the language of paragraph 1. This ambiguity may have been unintended, but nonetheless puts the court in a quandary since, absent direct payments, the plan is incapable of cash flowing and is thereby confirmable and, direct payments appear to be impossible given the threshold language of paragraph 1. 2. Recognizing the conflict in plan language may have been unintended and further satisfied that the inconsistency can-be remed ied by a short addendum, the court will nevertheless address the focal issue — ’that is, whether a debtor in a Chapter 13 case may make direct payments to impaired secured creditors and thereby avoid trustee fees on those payments. The question has been squarely addressed in the context of Chapter 12 in the recent decision of In re Wagner, supra. There the Eighth Circuit, reading section 1225(a)(5)(B)(ii) in conjunction with section 1226(c) held that the bankruptcy code does not forbid plan provisions allowing direct payments by a debtor to impaired secured creditors. Moreover, the Circuit opined that trustee fees under 28 U.S.C. § 586(e) are required only on payments actually received by the trustee. Thus, to the extent a direct payment is made with the trustee uninvolved, no fee is due. Chapter 12 was fashioned after Chapter 13 and their provisions are in many respects identical. Section 1326(c), identical with section 1226(c), provides for payment by the trustee “[ejxcept as otherwise provided in the plan or in the order confirming the plan”. Section 1325(a)(5) is identical with section 1225(a)(5) except for a phrase found in sub-part (B)(ii) of section 1225(a)(5) which is not found in subpart (B)(ii) of section 1325(a)(5). Section 1225(a)(5)(B)(ii) refers to “property to be distributed by the trustee or the debtor under the plan” whereas, section 1325(a)(5)(B)(ii) refers only to “property to be distributed under the plan”. This court does not interpret this omission as indicative of any congressional intent one way or the other as regards to the issue" } ]

[ { "docid": "19846925", "title": "", "text": "an oath of office, in order to constitute him- who is thus robbed one intrusted with the mail, as the statute-then read (United States v. Wilson, 28 Fed. Cas. loc. cit. 709). Since then the statute requires no more than lawful custody or control, and, since Todd had this sort of custody and control, the point is disallowed. It is most earnestly argued by counsel for defendants that .the trial court erred- in permitting the assistant district attorney to cross-examine Ray and Boreman, who were called as witnesses for the United States. The law on this point presents no particular difficulty. In its simplest statement it is that, when a party calls a witness and is surprised by affirmative evidence given by the witness, which actually aids the adversary party, the party calling the witness may cross-examine him, and show statements made by him which are contrary to the testimony given by him on the witness stand. State v. Bowen, 263 Mo. 279, 172 S. W. 367; Hickory v. United States, 151 U. S. 303, 14 Sup. Ct. 334, 38 L. Ed. 170; Swift v. Short, 92 Fed. 567, 34 C. C. A. 545; St. Clair v. United States, 154 U. S. 150, 14 Sup. Ct. 1002, 38 L. Ed. 936; People v. Jacobs, 49 Cal. 384; Chism v. State, 70 Miss. 742, 12 South. 852; Langford v. Jones, 18 Or. 307, 22 Pac. 1064; Worley v. Spreckels, 163 Cal. 70, 124 Pac. 697; Marugg v. Kells, 146 Ill. App. 394; Clancy v. Transit Co., 192 Mo. 615, 91 S. W. 509. But when the witness merely fails, when called, to testify in favor of the party calling him, as he was expected to do, but says nothing which tends to aid the case of the adversary party, he cannot be cross-examined or impeached by the party who calls him. State v. Bowen, supra; State v. Patton, 255 Mo. 245, 164 S. W. 223; Shackelford v. State (Tex. Cr. App.) 27 S. W. 8; People v. Mitchell, 94 Cal. 550, 29 Pac. 1106; Hickory v. United States, supra. Both phases" } ]

[ { "docid": "17936097", "title": "", "text": "310 U.S. 150, 220-225, 60 S. Ot 811, 84 L.Ed. 1129; See, Fashion Originators’ Guild v. Federal Trade Commission, 1941, 312 U.S. 457, 468, 61 S.Ot. 703, 85 L.Ed. 949. United States v. Socony-Vacuum Oil Co., supra, 310 U.S. at pages 220, 221, 60 S.Ct. at pages 842, 843, 84 L.Ed. 1129. (Emphasis added.) See, Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 1948, 68 S.Ct. 996, at page 1009. Fashion Originators’ Guild v. Federal Trade Commission, 1940, 2 Cir., 114 F.2d 80. Fashion Originators’ Guild v. Federal Trade Commission, supra, 2 Cir., 114 F.2d at pages 84, 85. (Emphasis added.) See cases under Notes 8 to 12, inclusive. And see, Restatement of Contracts, Section 510; Wilder Mfg. Co. v. Corn Products Refining Co., 1915, 236 U.S. 165, 35 S.Ct. 398, 59 L.Ed. 520, Ann.Gas.l916A, 118; Federal Trade Commission v. Sinclair Refining Co., 1923, 261 U.S. 463, 43 S.Ct. 450, 67 L.Ed. 746; Twin City Pipe Line Co. v. Harding Glass Co., 1931, 283 U.S. 353, 51 S. Ct. 476, 75 L.Ed. 1112, 83 A.L.R. 1108; Associated Oil Co. v. Myers, 1933, 217 Cal. 297, 18 P.2d 668; General Petroleum Corporation v. Longhead, 1933, 218 Cal. 554, 24 P.2d 457; B. S. Pearsall Butter Co. v. Federal Trade Commission, 1933, 7 Cir., 282 F. 720; Excelsior Motor Manufacturing & Supply Co., v. Sound Equipment, 1934, 7 Cir., 73 F.2d 725. United States v. Yellow Cab Co., 1947, 332 U.S. 218, 67 S.Ct. 1500, 91 L. Ed. 2010; United States v. National Lead Co., 1947, 332 U.S. 319, 67 S.Ct. 1634, 91 L.Ed. 2077; International Salt Co., Inc. v. United States, 1947, 332 U.S. 392, 68 S.Ct. 12; United States v. National Lead Co., 1947, 332 U.S. 319, 67 S.Ct. 1634, 91 L.Ed. 2077; United States v. Line Material Co., 1947, 333 U.S. 287, 303-310, 68 S.Ct. 550; United States v. United States Gypsum Co., 1948, 333 U.S. 364, 388-393, 68 S.Ct. 525. And see, International Machines Corporation v. United States, 1930, 298 U.S. 130, 137-140; Oxford Varnish Corporation Ault & Wiborg Corporation, 1936, 6 Cir., 83 F.2d 764; Signode" }, { "docid": "5995906", "title": "", "text": "Oil Co., 310 U.S. 150,235, 60 S.Ct. 811,84 L.Ed. 1129. In Southern R. Co. v. Gray, supra [241 U. S. 333, 36 S.Ct. 560, 60 L.Ed. 1030] a civil case, that court said: “In an effort to discredit the passenger engineer, only witness to some circumstances, he was asked on cross-examination concerning prior contradictory statements; but the exclusion of all or any part of his evidence would not change the result. Of course, the contradictory statements can have no legal tendency to establish the truth of their subject-matter.” (Italics supplied). And in United States v. Socony-Vacuum Oil Co., supra [310 U.S. 150, 60 S.Ct. 849, 84 L.Ed. 1129], a criminal case, this language is used: \"Likewise there would he error where under the pretext of refreshing a witness’ recollection, the prior testimony was introduced as evidence\" (Italics supplied). But the appellee insists that upon the authority of London Guarantee & Accident Co. v. Woelfle, supra, and Chicago, St. P. M. & O. Ry. Co. v. Kulp, supra, decided by this court, we should hold in this criminal proceeding that the girl “B’s” acknowledgment of her previous statements should be considered as substantive evidence of the facts asserted in those statements. The cited cases do not require us to proceed to that extremity, and the court’s reported opinions lead generally to the contrary position. The decision by this court of London Guarantee & Accident Co. v. Woelfle, supra, was a reversal of the trial court’s judgment in favor of the plaintiff upon a verdict of the jury and it was made, “because of the error of the trial court in the admission of evidence, and because of the improper remarks of counsel for plaintiff.” The evidence erroneously admitted did not include that of the witness Block, which, alone, was discussed with reference to impeachment. Regarding Block’s testimony the question before the court was whether there was error in allowing the plaintiff, who had produced him as a witness, to cross-examine him touching his previous statements inconsistent with his evidence that had disappointed and surprised the plaintiff; and this court correctly answered" }, { "docid": "5995896", "title": "", "text": "from her the fact that she had made statements to the district attorney and certain investigators, and had testified before the grand jury in a manner directly contrary to her testimony theretofore given on the trial. The admission was thus drawn from her that both in her extrajudicial statements and in her testimony before the grand jury, she had told of alleged incidents up on which the substantive counts of the indictment, or at least, counts I to XX, both inclusive, are predicated. However, in admitting the making of the earlier statements she added with respect to each item thereof that it was false. The appellants predicate error upon the reception of “B’s” testimony by way of cross-examination. On the other hand the government insists that her admission of her making of earlier statements damaging to the appellants is not only competent and receivable, but may be considered as substantive evidence of the alleged facts recited in the former statements. Neither position is entirely correct. It is now generally recognized both in civil and in criminal cases, that a party who, in good faith, has called a witness in his behalf and is surprised by his adverse testimony, may, in the court’s discretion, be allowed to draw from the witness in the manner of a cross-examination, or after due preliminary inquiry to show by others, that the witness has previously made statements materially at variance with his testimony. Thereby the party producing the recalcitrant witness is allowed to explain his own plight, and to nullify or neutralize the unanticipated repudiation of his position. This court has long sanctioned the practice. Winchester & Partridge Mfg. Co. v. Creary, 116 U.S. 161, 166, 6 S.Ct. 369, 29 L.Ed. 591; Hickory v. United States, 151 U. S. 303, 309, 14 S.Ct. 334, 38 L.Ed. 170; St. Clair v. United States, 154 U.S. 134,150,151, 14 S.Ct. 1002, 38 L.Ed. 936; Southern R. Co. v. Gray, 241 U.S. 333, 337, 36 S.Ct. 558, 60 L.Ed. 1030; United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 235, 60 S.Ct. 811, 84 L.Ed. 1129; Swift & Co." }, { "docid": "8929535", "title": "", "text": "in the sense that a monopoly under § 2 is a species of restraint of trade under § 1”. United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 226, footnote 59, 60 S.Ct. 811, 846, 84 L.Ed. 1129. See Johnson v. J. H. Yost Lumber Co., 8 Cir., 117 F.2d 53, 57, and cases there cited. See Binderup v. Pathé Exchange, Inc., 263 U.S. 291, 309, 310, 44 S.Ct. 96, 68 L.Ed. 308; Boynton v. Fox West Coast Theatres Corp., 10 Cir., 60 F.2d 851, 853. Stafford v. Wallace, 258 U.S. 495, 516, 42 S.Ct. 397, 66 L.Ed. 735, 23 A.L.R. 229; Federal Trade Commission v. Pacific States Paper Trade Association, 273 U.S. 52, 64, 47 S.Ct. 255, 71 L.Ed. 534. Montrose Lumber Co. v. United States, 10 Cir., 124 F.2d 573, 577. Apex Hosiery Co. v. Leader, 310 U.S. 469, 493, 511, 60 S.Ct. 982, 84 L.Ed. 1311, 128 A.L.R. 1044; Northern Securities Co. v. United States, 193 U.S. 197, 337, 341, 24 S.Ct. 436, 48 L.Ed. 679; United States v. Patten, 226 U.S. 525, 541, 33 S.Ct. 141, 57 L.Ed. 333, 44 L.R.A.,N.S., 325; United States v. General Motors Corp., 7 Cir., 121 F.2d 376, 403; Mitchell Woodbury Corporation v. Albert Pick-Barth Co., 1 Cir., 41 F.2d 148, 151. Labor cases are, of course, not involved in the present consideration. For the application of the Sherman Act to such organizations, see Apex Hosiery Co. v. Leader, 310 U.S. 469, 487, 488, 60 S.Ct. 982, 84 L.Ed. 1311, 128 A.L.R. 1044; United States v. Hutcheson, 312 U.S. 219, 61 S.Ct. 463, 85 L.Ed. 788; Truck Drivers’ Local No. 421 v. United States, 8 Cir., 128 F.2d 227. “And the amount of interstate or foreign trade involved is not material (Montague & Co. v. Lowry, 193 U.S. 38, 24 S.Ct. 307, 48 L.Ed. 008), since § 1 of the Act brands as illegal the character of the restraint not the amount of commerce affected.” United States v. SoconyVacuum Oil Co., Inc., 310 U.S. 150, 225, note 59, 60 S.Ct. 811, 845, 84 L.Ed. 1129. “The provisions of sections 1" }, { "docid": "22424429", "title": "", "text": "256 Minn. 316, 98 N.W.2d 129, 131 (Footnote 2) ; Franklin v. Minneapolis, St. P. & S. S. M. Ry. Co., 179 Minn. 480, 487, 229 N.W. 797, 800. . To the same effect are Estate of Sanford v. Commissioner, 308 U.S. 39, 51, 60 S.Ct. 51, 84 L.Ed. 20; Case v. Los Angeles Lumber Products Co., 308 U.S. 106, 115, 60 S.Ct. 1, 84 L.Ed. 110; Pettibone v. Cook County, Minnesota, 8 Cir., 120 F.2d 850, 856; Andrews v. St. Louis Joint Stock Land Bank, 8 Cir., 107 F.2d 462, 470, certiorari denied sub. nomine Cantley v. Andrews, 309 U.S. 667, 60 S.Ct. 592, 84 L.Ed. 1014; Tynan v. KSTP Incorporated, 247 Minn. 168, 176, 77 N.W. 2d 200, 205; Yellow Mfg. Acceptance Corp. v. Handler, 249 Minn. 539, 542, 83 N.W.2d 103, 106; Kobler v. Heins, 189 Minn. 213, 216, 248 N.W. 698, 700. . This language has been quoted by this court in Boatmen’s National Co. v. M. W. Elkins & Co., 63 F.2d 214, 217, a case arising out of Arkansas and decided before Erie R. Co. v. Tompkins, supra. . Reynolds v. Franklin, 44 Minn. 30, 31, 46 N.W. 139; Wallace v. Hallowell, supra, at pages 506 and 508 of 56 Minn., at pages 293-294 of 58 N.W.; Townsend v. Jakr, 147 Minn. 30, 32-33, 179 N.W. 486, 487; Sampson v. Penney, 151 Minn. 411, 413, 187 N.W. 135; Perkins v. Meyerton, 190 Minn. 542, 545, 251 N.W. 559, 560; Rosenquist v. Baker, 227 Minn. 217, 224, 35 NW.2d 346, 350. . Thieman v. Johnson, 8 Cir., 257 F.2d 129, 130; Chicago Great Western R. Co. v. Scovel, 8 Cir., 232 F.2d 952, 955, certiorari denied 352 U.S. 835, 77 S.Ct 53, 1 L.Ed.2d 54; Coca Cola Bottling Co. of Black Hills v. Hubbard, 8 Cir., at page 860 of 203 F.2d, supra; Gunning v. Cooley, supra, at page 94 of 281 U.S., at page 233 of 50 S.Ct.; Ryan v. Griffin, 241 Minn. 91, 97, 62 N.W.2d 504, 508-509; Caron v. Farmers Insurance Exchange, 252 Minn. 247, 255, 90 N.W. 2d 86, 92; Lee" }, { "docid": "5995897", "title": "", "text": "criminal cases, that a party who, in good faith, has called a witness in his behalf and is surprised by his adverse testimony, may, in the court’s discretion, be allowed to draw from the witness in the manner of a cross-examination, or after due preliminary inquiry to show by others, that the witness has previously made statements materially at variance with his testimony. Thereby the party producing the recalcitrant witness is allowed to explain his own plight, and to nullify or neutralize the unanticipated repudiation of his position. This court has long sanctioned the practice. Winchester & Partridge Mfg. Co. v. Creary, 116 U.S. 161, 166, 6 S.Ct. 369, 29 L.Ed. 591; Hickory v. United States, 151 U. S. 303, 309, 14 S.Ct. 334, 38 L.Ed. 170; St. Clair v. United States, 154 U.S. 134,150,151, 14 S.Ct. 1002, 38 L.Ed. 936; Southern R. Co. v. Gray, 241 U.S. 333, 337, 36 S.Ct. 558, 60 L.Ed. 1030; United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 235, 60 S.Ct. 811, 84 L.Ed. 1129; Swift & Co. v. Short, 8 Cir., 92 F. 567; Rosenthal v. United States, 8 Cir., 248 F. 684, 686; Randazzo v. United States, 8 Cir., 300 F. 794, 797, 798; Levy v. United States, 8 Cir., 35 F.2d 483, 484, 485; London Guarantee & Accident Co. v. Woelfle, 8 Cir., 83 F.2d.325, 332, 333, 334; Wiget v. Becker, 8 Cir., 84 F.2d 706, 710; Chicago, St. P., M. & O. Ry. Co. v. Kulp, 8 Cir., 102 F.2d 352, 357, 358, 133 A.L.R. 1445; F. W. Martin & Co. v. Cobb, 8 Cir., 110 F.2d 159, 165, 166; Chicago, St. P., M. & O. Ry. Co. v. Muldowney, 8 Cir., 130 F.2d 971, 975. No purpose could be served by the citation of authority from other circuits to the same effect, in respect of which there appears to be no variety of federal judicial opinion. We consider that the requisite element of surprise may be found in this instance. That the witness had made the incriminating statements to the district attorney and state and federal investigators and" }, { "docid": "5995905", "title": "", "text": "throughout the country are explored. And, with the reservation of specific cases contra hereafter mentioned, no different attitude is to be found in federal court opinions. Specific citations in support of this assertion will not be made; but the cases are noted in the American Digest system, Century Edition, Title Witnesses, Section 1266; Key Number Edition, Title Witnesses, Section 397. A modern comprehensive and abundantly annotated discussion of the question will be found in A. L. R., volume 133, pages 1454 et seq. See, also, Ann.Cas.l914B, page 1134 Note. The Supreme Court of the United States has rejected material of this character as substantive evidence. See Winchester & Partridge Mfg. Co. v. Creary, 116 U.S. 161, 166, 6 S.Ct. 369, 29 L.Ed. 591; Hickory v. United States, 151 U.S. 303, 305, 309, 14 S. Ct. 334, 38 L.Ed. 170; St. Clair v. United States, 154 U.S. 134, 150, 14 S.Ct. 1002, 38 L.Ed. 936; Southern R. Co. v. Gray, 241 U. S. 333, 337, 36 S.Ct. 558, 60 L.Ed. 1030; and United Sttaes v. Socony-Vacuum Oil Co., 310 U.S. 150,235, 60 S.Ct. 811,84 L.Ed. 1129. In Southern R. Co. v. Gray, supra [241 U. S. 333, 36 S.Ct. 560, 60 L.Ed. 1030] a civil case, that court said: “In an effort to discredit the passenger engineer, only witness to some circumstances, he was asked on cross-examination concerning prior contradictory statements; but the exclusion of all or any part of his evidence would not change the result. Of course, the contradictory statements can have no legal tendency to establish the truth of their subject-matter.” (Italics supplied). And in United States v. Socony-Vacuum Oil Co., supra [310 U.S. 150, 60 S.Ct. 849, 84 L.Ed. 1129], a criminal case, this language is used: \"Likewise there would he error where under the pretext of refreshing a witness’ recollection, the prior testimony was introduced as evidence\" (Italics supplied). But the appellee insists that upon the authority of London Guarantee & Accident Co. v. Woelfle, supra, and Chicago, St. P. M. & O. Ry. Co. v. Kulp, supra, decided by this court, we should hold in" }, { "docid": "5995904", "title": "", "text": "authority in each state of the government’s present point. We shall merely cite the cases, all criminal actions and most of them subsequent to the cases cited by the appellee, from the corresponding states. Missouri has already been considered. For Louisiana, see State v. Bodoin, 153 La. 641, 96 So. 501, 502; for Delaware, State v. Hopkins, 6 W. W. Harr. 194, 172 A. 841 (see, also, as a late civil case in its final court, In re Kemp’s Will, 7 W.W.Harr. 514, 186 A. 890, 891); for Alabama, Manning v. State, 217 Ala. 357, 116 So. 360, 361; for Arizona, Indian Fred v. State, 36 Ariz. 48, 282 P. 930; and for Minnesota, State v. Saporen, 205 Minn. 358, 285 N.W. 898. The contention that persuasive support for the availability as substantive testimony of the contents of admitted previous extrajudicial statements may be found in the decisions of state courts, therefore, fails upon an analysis of the authorities on which the government relies. It is dissipated altogether when the decisions of state courts generally throughout the country are explored. And, with the reservation of specific cases contra hereafter mentioned, no different attitude is to be found in federal court opinions. Specific citations in support of this assertion will not be made; but the cases are noted in the American Digest system, Century Edition, Title Witnesses, Section 1266; Key Number Edition, Title Witnesses, Section 397. A modern comprehensive and abundantly annotated discussion of the question will be found in A. L. R., volume 133, pages 1454 et seq. See, also, Ann.Cas.l914B, page 1134 Note. The Supreme Court of the United States has rejected material of this character as substantive evidence. See Winchester & Partridge Mfg. Co. v. Creary, 116 U.S. 161, 166, 6 S.Ct. 369, 29 L.Ed. 591; Hickory v. United States, 151 U.S. 303, 305, 309, 14 S. Ct. 334, 38 L.Ed. 170; St. Clair v. United States, 154 U.S. 134, 150, 14 S.Ct. 1002, 38 L.Ed. 936; Southern R. Co. v. Gray, 241 U. S. 333, 337, 36 S.Ct. 558, 60 L.Ed. 1030; and United Sttaes v. Socony-Vacuum" }, { "docid": "23012354", "title": "", "text": "she could not identify the defendants. The prosecution, plainly surprised by this volte face, then began to cross-examine her straitly, and brought out from her contradictory statements, made not only before the grand jury, but on other occasions. Her actual evidence before the grand jury was not introduced. The latitude to be allowed in the examination of a witness, who has been called and proves recalcitrant, is wholly within the discretion of the trial judge. Nothing is more unfair than to confine a party under such circumstances to neutral questions. Not only may the questions extend to cross-examination, but, if necessary to bring out the truth, it is entirely proper to inquire of such a witness whether he has not made contradictory statements at other times. He is present before the jury, and they may gather the truth from his whole conduct and bearing, even if it be in respect of contradictory answers he may have made at other times. “ ‘In St. Clair v. United States, 154 U.S. 134, 14 S.Ct. 1002, 38 L.Ed. 936, this procedure was approved, as also in Swift & Co. v. Short, 92 F. 567, 34 C.C.A. 545 (C.C.A.8); Hays v. Tacoma R. & P. Co. (C.C.) 106 F. 48; Tacoma R. & P. Co. v. Hays, 110 F. 496, 497, 49 C.C.A. 115 (C.C.A.9). See, also, Hickory v. United States, 151 U.S. 303, 309, 14 S.Ct. 334, 38 L.Ed. 170. The question decided in Putnam v. United States, 162 U.S. 687, 16 S.Ct. 923, 40 L.Ed. 1118, did not arise here. Nor was the right abused as in Rosenthal v. United States, 248 F. 684, 160 C.C.A. 584 (C.C.A.8). The possibility that the jury may accept as the truth the earlier statements in preference to those made upon the stand is indeed real, but we find no difficulty in it. If, from all that the jury see of the witness, they conclude that what he says now is not the truth, but what he ■ said before, .they are none the less deciding from what they see and hear of that person and" }, { "docid": "4385142", "title": "", "text": "for a directed verdict of not guilty. Reversed and remanded, with instructions to dismiss the indictment as to the Tripps. . Minner v. United States, 10 Cir., 57 F.2d 506, 511; Continental Baking Co. v. United States, 6 Cir., 281 F.2d 137, 152, 153; Glasser v. United States, 315 U.S. 60, 74, 62 S.Ct. 457, 86 L.Ed. 680; Bartlett v. United States, 10 Cir., 166 F.2d 920, 924, 925. . Bartlett v. United States, 10 Cir., 166 F.2d 920, 924; Minner v. United States, 10 Cir., 57 F.2d 506, 511; Rimmer v. United States, 5 Cir., 172 F.2d 954, 959; Krulewitch v. United States, 336 U.S. 440, 442-444, 69 S.Ct. 716, 93 L.Ed. 790. . Delli Paoli v. United States, 352 U.S. 232. 238. 77 S.Ct. 294, 1 L.Ed.2d 278. • . Bridges v. Wixon, 326 U.S. 135, 153, 65 S.Ct. 1443, 89 L.Ed. 2103; Hickory v. United States, 151 U.S. 303, 309, 14 S.Ct. 334, 38 L.Ed. 170; National Labor Relations Board v. Quest-Shon Mark Brassiere, 2 Cir., 185 F2.d 285, 289 (contradictory statements of a recalcitrant witness), certiorari denied 342 U.S. 812, 72 S.Ct. 25, 96 L.Ed. 614; McCracken v. Richmond, F. & P. R. Co., 4 Cir., 240 F.2d 484, 487 (contradictory statements of a recalcitrant -witness); Eisenberg v. United States, 5 Cir., 273 F.2d 127, 130 (contradictory statements of a recalcitrant -witness); Holland v. Cooper, 5 Cir., 192 F.2d 214, 216; Headen v. Pope & Talbot, Inc., 3 Cir., 252 F.2d 739, 744. . See, St. Clair v. United States, 154 U.S. 134, 150, 14 S.Ct. 1002, 38 L.Ed. 936; Curtis v. United States, 10 Cir., 67 F.2d 943, 946; DiCarlo v. United States, 2 Cir., 6 F.2d 364, 365, certiorari denied 268 U.S. 706, 45 S.Ct. 640, 69 L.Ed. 1168. . Harman v. United States, 4 Cir., 199 F.2d 34, 36; Zimberg v. United States, 1 Cir., 142 F.2d 132, 136, 137, certiorari denied 323 U.S. 712, 65 S.Ct. 38, 89 L.Ed. 573; Stewart v. Baltimore & O. R. Co., 2 Cir., 137 F.2d 527, 529; Stevens v. United States, 9 Cir., 256 F.2d 619," }, { "docid": "5995912", "title": "", "text": "the probative significance of the impeaching testimony said: “The impeaching testimony was not competent as an admission made by the company or as affirmative proof that the derrick had given way to the company’s knowledge. The declaration was not part of the res gestae. It was competent to impeach the only witness offered by the company to sustain the defenses pleaded.” In Chicago, St. P. M. & O. Ry. Co. v. Muldowney, 8 Cir., 130 F.2d 971, 975, the following situation and ruling are disclosed: “It is contended by plaintiff that the jury might also have properly found that the engineer brought the engine to a complete stop approximately twenty feet from the point of accident and then started it up to make the coupling. This contention is based upon the testimony of Mrs. Muldowney to the effect that the fireman told her the engine was brought to a stop twenty feet south of the Swift car just prior to the accident. On cross-examination the fireman was asked whether he had made such a statement, alleged to have been made long after the accident occurred, and he denied having made it. The statement, if made, was no part of the res gestae and was not binding on the defendant. It was admissible only as bearing upon the credibility of the witness and it had no tendency to prove the truth of the subject matter.” See, also, Wiget v. Becker, 8 Cir., 84 F. 706, cited by this court in its opinion in the Muldowney case, for its general reasoning upon a related point. In Rosenthal v. United States, 8 Cir., 248 F. 684, 686, the conviction of the defendant for false swearing was reversed for error in the reception of evidence of a witness’ previous statements upon the pretext of refreshing his recollection. Upon the point involved this court said: “Another error committed was the admission of the testimony of Lipschitz, the main witness for the government, without whose testimony there was practically no evidence to justify a verdict of guilty. While, in view of his testimony, as given before" }, { "docid": "17330386", "title": "", "text": "U.S. 303, 14 S.Ct. 334, 38 L.Ed. 170; United States v. Socony-Vacuum Oil Co., Inc., supra, Ellis v. United States, 8 Cir., 138 F.2d 612; F. W. Martin & Co. v. Cobb, 8 Cir., 110 F.2d 159; Chicago, St. P., M. & O. Ry. Co. v. Muldowney, 8 Cir., 130 F.2d 971; Consolidated Electric Cooperative v. Panhandle Eastern Pipeline Co., 8 Cir., 189 F.2d 777, and United States v. Rainwater et al., 8 Cir., 283 F.2d 386. Of course, there would be error where, under the pretext of refreshing a witness’ recollection, the prior testimony was introduced as evidence. United States v. Socony-Vacuum Oil Co., supra, 310 U.S. at page 234, 60 S.Ct. at page 849, and cases therein cited. Appellant complains as to both the use of the grand jury testimony and the method of such use. Government counsel read aloud to the witness, from three different portions of the record of the grand jury testimony, certain questions and answers. Appellant’s counsel interposed no appropriate objection to such practice or procedure. The questions and answers read related solely to the conversations which took place between the witness Lowe and appellant, to which inquiry had just been made. Prior to the use of such testimony the trial judge had held a conference in chambers out of the presence of the jury, and at such conference, following the reading of the first of such portions of the grand jury testimony by the prosecutor, the trial Court stated: “The Court: All right, refresh his recollection as to the testimony before the Grand Jury there with reference t6 the ‘hot’. Read the other one.” (Tr. pp. 71-b and 71-e) Following the reading of the portion just referred to by the trial judge, the Court stated: “The Court: Refresh his recollection as to that. What is your objection? “Mr. Graulieh (Counsel for Appellant) : My only objection was that he is impeaching his own witness. “The Court: Overruled.” (Tr. p. 71-c) Thereupon the trial proceeded before the jury. The third portion referred to was later read at the direction of the trial judge. After" }, { "docid": "23012355", "title": "", "text": "936, this procedure was approved, as also in Swift & Co. v. Short, 92 F. 567, 34 C.C.A. 545 (C.C.A.8); Hays v. Tacoma R. & P. Co. (C.C.) 106 F. 48; Tacoma R. & P. Co. v. Hays, 110 F. 496, 497, 49 C.C.A. 115 (C.C.A.9). See, also, Hickory v. United States, 151 U.S. 303, 309, 14 S.Ct. 334, 38 L.Ed. 170. The question decided in Putnam v. United States, 162 U.S. 687, 16 S.Ct. 923, 40 L.Ed. 1118, did not arise here. Nor was the right abused as in Rosenthal v. United States, 248 F. 684, 160 C.C.A. 584 (C.C.A.8). The possibility that the jury may accept as the truth the earlier statements in preference to those made upon the stand is indeed real, but we find no difficulty in it. If, from all that the jury see of the witness, they conclude that what he says now is not the truth, but what he ■ said before, .they are none the less deciding from what they see and hear of that person and in court. There is no mythical necessity that the case must be decided only in accordance with the truth of words uttered under oath'in court.’ “The statement of the court, .quoted above, made at the time this evidence was being elicited, was not prejudicial and was a correct statement of the law. The observation that ‘we are seeking the truth here,’ was a -mere statement of what' is the primary purpose in every trial of an issue of fact to a jury.” See, also, Craig v. United States (C.C.A.9) 81 F.(2d) 816, in which Di Carlo v. United States (C.C.A.2) 6 F.(2d) 364, 368, is also cited with approval. In Levy v. United States (C.C.A.8) 35 F.(2d) 483, at page 484, Judge Kenyon used the following language in delivering the opinion of the court: “During the examination of the government’s witness Ervin, the court permitted government counsel to ask of said witness leading questions. This witness was apparently contradicting statements he had made at other times — some under oath. The district attorney 'stated he" }, { "docid": "18008770", "title": "", "text": "to the plaintiff.” . These eases illustrate some of the kinds of statements received as admissions: Vicksburg & Meridian R. Co. v. Putnam, 118 U.S. 545, 7 S.Ct. 1, 30 L.Ed. 257; Chicago, St. P. M. & O. Ry. Co. v. Kulp, 8 Cir., 102 F.2d 352, 133 A.L.R. 1445, certiorari denied 307 U.S. 636, 59 S.Ct. 1032, 83 L.Ed. 1518; Landgraf v. United States, D.C.Pa., 75 F.Supp. 58, 1947 A.M.C. 1539; Sternberg Dredging Co. v. Moran Towing & Transportation Co., Inc., 2 Cir., 196 F.2d 1002, 1952 A.M.C. 1118; Callahan v. Chicago B. & O. Rd. Co., 47 Mont. 401, 133 P. 687, 47 L.R.A.,N.S., 587. . Masjulis v. United States Shipping Board Emergency Fleet Corporation, 2 Cir., 31 F.2d 284, 1929 A.M.C. 740; Darlington v. National Bulk Carriers, Inc., 2 Cir., 157 F.2d 817, 1947 A.M.C. 315; Dixon v. United States, D.C.N.Y., 120 F.Supp. 747, 1954 A.M.C. 966, modified on appeal, 2 Cir., 219 F.2d 10. . See 46 U.S.C.A. §§ 713, 567, 568, 575, 576, 592, 599, 602, 660, 661, 660a, 653, 655, 662, 701, 706. See also Isbrandtsen Co., Inc., v. Johnson, 343 U.S. 779, 72 S.Ct. 1011, 96 L.Ed. 1294, 1952 A.M.C. 1283. This is reflected by the unyielding refusal to allow assumed risk in any form as a defense to unseaworthiness or the shipowner’s negligence, The Arizona, 298 U.S. 110, 56 S.Ct. 707, 80 L.Ed. 1075, 1936 A.M.O. 627; Beadle v. Spencer, 298 U.S. 124, 56 S.Ct. 712, 80 L.Ed. 1082, 1936 A.M.C. 635; Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 59 S.Ct. 262, 83 L.Ed. 265, 1939 A.M.C. 1; Mahnich v. Southern Steamship Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561, 1944 A.M.C. 1; Courts v. Erickson, 5 Cir., 241 F.2d 499, 1957 A.M.C. 515." }, { "docid": "23439041", "title": "", "text": "a train by a'railroad that some strange metamorphosis takes place in that man’s mind and he becomes a fraud and a cheat ?” There are other statements in the argument which we think probably will want to be reread and considered by counsel before they are repeated on a retrial. We need not, however, discuss the argument further, for there is no reason for us to anticipate that the same things will be said again. And our previous decisions do not leave the bounds of proper argument in a federal court case unknown. See London Guarantee & Accident Co. v. Woelfle, 8 Cir., 83 F.2d 325, 338-344; Chicago & N. W. Ry. Co. v. Kelly, 8 Cir., 74 F.2d 31, 36, 37; Id., 8 Cir., 84 F.2d 569, 573-576; Union Pac. R. Co. v. Field, 8 Cir., 137 F. 14. See also New York Central R. Co. v. Johnson, 279 U.S. 310, 49 S.Ct. 300, 73 L.Ed. 706; Minneapolis, St. P. & S.S.M.R. Co. v. Moquin, 283 U.S. 520, 51 S.Ct. 501, 75 L.Ed. 1243. Defendant’s final contention is that the judgment should be reversed for ex-cessiveness of the verdict. The verdict was for $16,458. A Circuit Court of Appeals will not review the verdict in a tort action for excessiveness or inadequacy of its amount. Wabash Railway Co. v. McDaniels, 107 U.S. 454, 456, 2 S.Ct. 932, 27 L.Ed. 605; Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 485, 53 S.Ct. 252, 77 L.Ed. 439; Chicago & N. W. Ry. Co. v. Kelly, 8 Cir., 74 F.2d 31, 37. The judgment is reversed and the cause remanded for a new trial, because of the refusal to give defendant’s requested instruction on the theory of its defense." }, { "docid": "6513814", "title": "", "text": "affecting their substantial rights. Accordingly the judgment of the District Court is Affirmed. Throughout we will refer to the parties as they were designated at trial. . Northern Pacific Railroad v. Urlin, 158 U.S. 271, 273, 15 S.Ct. 840, 39 L.Ed. 977 (1895); St. Clair v. United States, 154 U.S. 134, 150, 14 S.Ct. 1002, 38 L.Ed. 936 (1894); Mitchell v. United States, 213 F.2d 951, 956 (9 Cir. 1954), cert. denied, 348 U.S. 912, 75 S.Ct. 290, 99 L.Ed. 715 (1955); United States v. Montgomery, 126 F.2d 151, 153 (3 Cir.), cert. denied, 316 U.S. 681, 62 S.Ct. 1268, 86 L.Ed. 1754 (1942); Reeves v. Low, 8 App.D.C. 105, 117 (1896). . The judge: “Does your position apply both to the Plaintiff and the Defendant? * * * What about 98 percent of the Defendant’s doctors who only examine the patient to testify in court?” Defense counsel: “That’s true; no question about that, and that’s by agreement. That’s understood. They are permitted to do that, and sometimes it is necessary.” As to considerations applicable to medical experts called by the defense, see Walker v. West Coast Fast Freight, Inc., 233 F.2d 939, 942 (9 Cir. 1956). And see Fed.R.Civ.P. 35, 28 U.S.C.A. . As to which, see Aetna Life Ins. Co. v. Quinley, 87 F.2d 732, 733 (8 Cir. 1937) and cases cited. Cf. Kaufman v. Kaufman, 82 U.S.App.D.C. 397, 164 F.2d 519 (1947). . Chicago & N. W. Ry. Co. v. Garwood, 167 F.2d 848, 859 (8 Cir. 1948); Nashville, C. & St. L. Ry. Co. v. York, 127 F.2d 606, 611-612 (6 Cir. 1942); cf. Meaney v. United States, 112 F.26 538, 540 (2 Cir. 1940); see Washington & O. D. B. Co. v. Slyder, 43 App.D.C. 95, 99 (1915); Washington, A. & M. V. R. Co. v. Fincham, 40 App.D.C. 412, 419 (1913). And see generally, Annot., 51 A.L.R.2d 1051 (1957). . See, e. g., Nashville, C. & St. L. Ry. Co. v. York, supra note 4, 127 F.2d at 611. Cf. Gunning v. Cooley, 58 App.D.C. 304, 305, 30 F.2d 467, 468 (1929), aff’d, 281" }, { "docid": "17020059", "title": "", "text": "the sentencing court had jurisdiction of the offense and that the judgment should be affirmed. . Foltz v. St. Louis & S. F. Ry. Co., 8 Cir., 60 F. 316, 318, 319; Burgess v. Nail, 10 Cir., 103 F.2d 37, 44; Walling v. Miller, 8 Cir., 138 F.2d 629, 632; National Park Bank v. McKibben & Co., D.C.Ga., 43 F.2d 254, 255; Ripperger v. A. C. Allyn & Co., 2 Cir., 113 F.2d 332, 333; Brotsky v. Lehigh Valley R. R. Co., 2 Cir., 156 F.2d 594, 596; Nye v. United States, 4 Cir., 137 F.2d 73, 77; O. F. Nelson & Co. v. United States, 9 Cir., 169 F.2d 833, 836; Bostwick v. Baldwin Drainage Dist., 5 Cir., 133 F.2d 1, 4. . See, also, Stoll v. Gottlieb, 305 U.S. 165, 171, 172, 59 S.Ct. 134, 137, 83 L.Ed. 104; Chicago R. I. & P. Ry. Co. v. Schendel, 270 U.S. 611, 617, 46 S.Ct. 420, 70 L.Ed. 757; Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 403, 60 S.Ct. 907, 84 L.Ed. 1263; Bretsky v. Lehigh Valley R. R. Co., 2 Cir., 156 F.2d 594, 598; National Park Bank v. McKibben & Co., D.C.Ga., 43 F.2d 254, 255. . See, also, Ripperger v. A. C. Allyn & Co., 2 Cir., 113 F.2d 332, 333; Walling v. Miller, 8 Cir., 138 F.2d 629, 632. . Gebhart v. Hunter, 10 Cir., 184 F.2d 644, and cases there cited; Holbrook v. Hunter, 10 Cir., 149 F.2d 230, 231; Fowler v. Hunter, 10 Cir., 164 F.2d 668, 669; Garrison v. Hunter, 10 Cir., 149 F.2d 844, 845. . Section 6 of the Indian Allotment Act, Act of February 8, 1887, 24 Stat. 388, 390, was amended by the Act of May 8, 1906, 34 Stat. 182, to provide: “That until the issuance of fee-simple patente all allottees to whom trust patents shall hereafter be issued shall be subject to the exclusive jurisdiction of the United States.” . And, in United States v. Chavez, 290 U. S. 357, 54 S.Ct. 217, 78 L.Ed. 360, the court held that the lands of the" }, { "docid": "5995898", "title": "", "text": "v. Short, 8 Cir., 92 F. 567; Rosenthal v. United States, 8 Cir., 248 F. 684, 686; Randazzo v. United States, 8 Cir., 300 F. 794, 797, 798; Levy v. United States, 8 Cir., 35 F.2d 483, 484, 485; London Guarantee & Accident Co. v. Woelfle, 8 Cir., 83 F.2d.325, 332, 333, 334; Wiget v. Becker, 8 Cir., 84 F.2d 706, 710; Chicago, St. P., M. & O. Ry. Co. v. Kulp, 8 Cir., 102 F.2d 352, 357, 358, 133 A.L.R. 1445; F. W. Martin & Co. v. Cobb, 8 Cir., 110 F.2d 159, 165, 166; Chicago, St. P., M. & O. Ry. Co. v. Muldowney, 8 Cir., 130 F.2d 971, 975. No purpose could be served by the citation of authority from other circuits to the same effect, in respect of which there appears to be no variety of federal judicial opinion. We consider that the requisite element of surprise may be found in this instance. That the witness had made the incriminating statements to the district attorney and state and federal investigators and had repeated them under oath before the grand jury can not be questioned, and was admitted by her. Undoubtedly, the indictment was founded almost entirely upon her testimony before the grand jury. It does appear that her evidence before the grand jury was reluctantly given and was encouraged by rather broad intimations to the girl from the district attorney of the penalties for perjury. That the district attorney, in preparation for the final trial was not without apprehension of the girl’s instability, may be inferred from the presence in court when she testified, of the grand jury foreman and others who presumably had heard her earlier statements. It might be contended with some cogency that the district attorney was disappointed rather than surprised in the strictest sense of the latter term. But we consider that the situation with which the trial judge was confronted amply supported his inference of surprise in the sense in which it must be understood here. We have hitherto asserted advisedly that “the claim of surprise has become largely a gesture" }, { "docid": "17330385", "title": "", "text": "on the stand, and had familiarized himself in chambers with at least a part of the grand jury testimony with which counsel sought to refresh the witness’ recollection. We are of the opinion that there was such contemporaneity between the giving of the grand jury testimony and the occurrence to which it related as to satisfy the test enunciated in Putnam and recognized and applied in Socony-Vacu-um. Appellant also contends there is reversible error present here because the above referred to grand jury testimony given by witness Lowe was in fact used as substantive evidence in the presentation of the government’s case in chief. Under the generally accepted doctrine, to which this Court has consistently adhered, such testimony by the witness made in a prior proceeding does not constitute affirmative evidence of the facts so stated. Vol. 3, Wigmore on Evidence, 3rd Ed., Section 1018(b); McCormick on Evidence, Section 39, p. 73; 58 Am.Jur., p. 421; Southern Railway Co. v. Gray, 241 U.S. 333, 36 S.Ct. 558, 60 L.Ed. 1030; Hickory v. United States, 151 U.S. 303, 14 S.Ct. 334, 38 L.Ed. 170; United States v. Socony-Vacuum Oil Co., Inc., supra, Ellis v. United States, 8 Cir., 138 F.2d 612; F. W. Martin & Co. v. Cobb, 8 Cir., 110 F.2d 159; Chicago, St. P., M. & O. Ry. Co. v. Muldowney, 8 Cir., 130 F.2d 971; Consolidated Electric Cooperative v. Panhandle Eastern Pipeline Co., 8 Cir., 189 F.2d 777, and United States v. Rainwater et al., 8 Cir., 283 F.2d 386. Of course, there would be error where, under the pretext of refreshing a witness’ recollection, the prior testimony was introduced as evidence. United States v. Socony-Vacuum Oil Co., supra, 310 U.S. at page 234, 60 S.Ct. at page 849, and cases therein cited. Appellant complains as to both the use of the grand jury testimony and the method of such use. Government counsel read aloud to the witness, from three different portions of the record of the grand jury testimony, certain questions and answers. Appellant’s counsel interposed no appropriate objection to such practice or procedure. The questions and" }, { "docid": "2406592", "title": "", "text": "the credibility of the witness and it had no tendency to prove the truth of the subj ect matter. Wiget v. Becker, 8 Cir., 84 F.2d 706; Southern R. Co. v. Gray, 241 U.S. 333, 36 S.Ct. 558, 60 L.Ed. 1030; Riggs v. Metropolitan Street Railway Co., 216 Mo. 304, 115 S.W. 969. The duty imposed upon a common carrier engaged in interstate commerce by rail to equip and maintain on all cars used by it couplers coupling automatically by impact is an absolute one. Any violation of this duty resulting in injury to an employee gives rise to a liability irrespective of actual negligence on the part of the carrier other than mere failure to comply with the requirements of the Act. It is not only the duty of the railroad to provide such couplers, but to keep them in such operative condition that they will always perform their functions. The test of compliance is the operating efficiency of the couplers with which the car is equipped. San Antonio & A. P. R. Co. v. Wagner, 241 U.S. 476, 36 S.Ct. 626, 60 L.Ed. 1110; Delk v. St. Louis & S. F. R. Co., 220 U.S. 580, 31 S.Ct. 617, 55 L.Ed. 590. In the final analysis the crucial question of fact in this case is whether at the time of the accident the couplers involved were in such condition that they would not couple automatically on impact. The evidence by which this ultimate fact is sought to be established is circumstantial. Such an ultimate fact is susceptible of proof by circumstantial evidence the same as any other fact. Lowden v. Burke, 8 Cir., 129 F.2d 767; Geraghty v. Lehigh Valley R. Co., 2 Cir., 70 F.2d 300; Williamson v. St. Louis-San Francisco Ry. Co., 335 Mo. 917, 74 S.W.2d 583. When the Swift car, with three other cars, was detached from the train it was put through certain switching movements during which it, with three other cars, was “kicked” back to the balance of the train. Just what effect this “kick back” may have had upon the coupling" } ]

[ { "docid": "12748198", "title": "", "text": "judge.” Bavely v. Powell (In re Baskett), 219 B.R. 754, 757 (6th Cir. BAP 1998) (relying on Meganck v. Couts (In re Couts), 188 B.R. 949, 951 (Bankr. E.D. Mich.1995)). In Waifersong, Ltd. Inc. v. Classic Music Vending, 976 F.2d 290, 292 (6th Cir. 1992), the Sixth Circuit explained that a determination of whether to set aside a default judgment under Civil Rule 60(b)(1) requires a three-step analysis. First, the moving party must “demonstrate that his default was the product of mistake, inadvertence, surprise, or excusable neglect.” Only after this threshold requirement has been satisfied may the Court consider the remaining two steps of the analysis; namely “whether the [moving party] has a meritorious defense,” and “whether the [non-moving party] will be prejudiced” by relief from judgment. Id. In order to show that relief is appropriate under Rule 60(b)(1) based on “excusable neglect,” Debtor must show both (1) that his conduct in failing to timely respond to Creditor’s Objection constituted “neglect” within the meaning of Rule 60(b)(1); and (2) that his “neglect” was excusable. In Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380, 388, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), the Supreme Court explained that “[t]he ordinary meaning of ‘neglect’ is ‘to give little attention or respect’ to a matter, or ... ‘to leave undone or unattended to especially] through carelessness.’ ” Id. (quoting 'Webster’s Ninth New Collegiate Dictionary 791 (1983) (emphasis added)). Based on the ordinary meaning of “neglect,” the Court concluded that' the concept of “neglect” under Civil Rule 60(b)(1) denotes that “a party is partly to blame” for failing to act, and that “at least 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. 1489 (internal quotation marks and citations omitted). If Debtor shows “neglect,” the next issue is whether Debtor’s neglect was excusable. In Pioneer, the Supreme Court explained that a determination of whether a party’s neglect of a deadline is excusable ... is at bottom an equitable one," } ]

[ { "docid": "23356497", "title": "", "text": "shown may at any time in its discretion .. .upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect[.]”). “[T]he excusable neglect standard has consistently been held to be strict, and can be met only in extraordinary cases.” Marsh v. Richardson, 873 F.2d 129, 130 (6th Cir.1989) (internal quotation omitted) (interpreting “excusable neglect” in the context of Federal Rule of Appellate Procedure 4(a)(5)). The movant first must demonstrate that his failure to meet the deadline was a case of neglect. Neglect exists where the failure to do something occurred because of a simple, faultless omission to act, or because of a party’s carelessness. Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 388, 113 S.Ct. 1489, 123 L.Ed.2d 74, (1993); id. at 391, 395,113 S.Ct. 1489 (defining excusable neglect as used in FED. R. BANKR. P. 9006(b)(1) and noting it was patterned after FED. R. CIV. P. 6(b)). Second, the movant must establish that the failure to act was excusable. “The determination of whether a case of neglect was excusable is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission. These include ... the danger of prejudice to the [non-moving party], the length of the delay and its impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the mov-ant, and whether the movant acted in good faith.” Id. at 395,113 S.Ct. 1489. Plaintiff has not demonstrated that the magistrate judge abused his discretion in failing to find excusable neglect for Plaintiffs failure to serve the additional Defendants in a timely manner. Plaintiff points out that defense counsel had accepted service of the First Amended Complaint for Defendants Canning and Zachary, who were current employees, but refused to accept for Defendant Tapp, who was retired. Based on this one-time action, Plaintiff assumed that defense counsel’s practice was to accept service of all future amended complaints on behalf of employees currently employed by the City of Taylor" }, { "docid": "8020975", "title": "", "text": "Debtors properly filed their written objection to the allowance of the claim under Bankruptcy Rule 3007. E. Movant is not entitled to equitable relief under Federal Rule of Civil Procedure 60(b). In its Motion to Vacate, Movant has requested equitable relief under Federal Rules of Civil Procedure Rule 60(b)(1) or 60(b)(6), incorporated into contested matters in bankruptcy cases by Federal Rule of Bankruptcy Procedure 9024. Rule 60(b) provides that a court may relieve a party from a final judgment or order for “excusable neglect” or “any other reason justifying relief from the operation of the judgment.” Rule 60(b)(1) and (6). At the hearing on the Motion to Vacate, Movant’s counsel provided no argument as to the existence of “any other reason” justifying a vacation of the Order. Given the totality of the circumstances discussed above, this Court holds that there is no “any other reason” to vacate the Order. Hence, the sole remaining issue is whether Movant has shown “excusable neglect” under Rule 60(b)(1). The United States Supreme Court has adopted four factors to be used in determining whether neglect can be characterized as excusable. These are: (1) the danger of prejudice to the debtor; (2) the potential impact on judicial proceedings; (3) the reason for the neglect including whether it was within the reasonable control of the movant; and (4) whether the movant acted in good faith. Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). The Supreme Court has further emphasized that the proper focus is upon the actions of both the movant and its counsel in determining whether the neglect was excusable. Id. at 397, 113 S.Ct. 1489. Since the Debtors filed their petition, the bankruptcy process has been moving towards confirmation and effectuation of the Plan. Indeed, this Court has confirmed the Debtors’ Plan, and holders of unsecured claims, including the Movant, are to receive a percentage (approximately 2.18%) of their respective claims under the Plan. Because the Plan has been confirmed by the Court, should this Court vacate the Order, the Debtors would be" }, { "docid": "15269507", "title": "", "text": "filed one day late). A request for an extension under Rule 6(b)(1)(B) should be made upon formal application for an order in compliance with the provisions of Rule 7(b)(1) relating to motions. Because Rule 7(b)(1)(B) requires that the application state with particularity the grounds therefore, the movant must allege the facts constituting excusable neglect; the mere assertion of excusable neglect unsupported by facts has been held to be insufficient. Casanova v. Marathon Corp., 499 F.Supp.2d 32, 34 (D.D.C.2007); 4B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1165 (3d ed.2002). It is questionable whether the Consent Motion meets the standard required by the Federal Rules of Civil Procedure. As an initial matter, defendant did not acknowledge its failure to file a timely opposition until prompted by the court’s Order. Even then, despite the court having directed defendant to the proper authority, no reference was made to excusable neglect or Rule 6(b) of the Federal Rules of Civil Procedure. b. Excusable Neglect Even if the court were to deem the Consent Motion 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" }, { "docid": "7623355", "title": "", "text": "case, the bankruptcy court denied the motion to set aside the default judgment based -upon Rule 55 without addressing whether any requirement of Rule 60(b) was met. The only arguable basis in Rule 60(b) to set aside the default judgment in the present case is “excusable neglect.” Fed.R.Civ.P. 60(b)(1). In the context of another bankruptcy rule, the Supreme Court has adopted a flexible standard for evaluating excusable neglect. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Limited Partnership, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). The Supreme Court concluded that excusable neglect encompasses both “simple faultless omissions to act and, more commonly, omission caused by carelessness.” Id. at 388, 113 S.Ct. at 1495. The Court stated, “[F]or 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 further stated that the determination of whether excusable neglect exists is an equitable determination, and the Comjt agreed with the factors that the Sixth Circuit had considered in the case, including “the danger of prejudice to the debtor, the length of 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 395, 113 S.Ct. at 1498 (citing Brunswick Assocs. Limited v. Pioneer Inv. Servs. Co. (In re Pioneer Inv. Servs. Co.), 943 F.2d 673, 677 (6th Cir.1991)). The Sixth Circuit has not analyzed excusable neglect under Rule 60(b) using the Pioneer standard. However, the analysis used by the Sixth Circuit in Rule 60(b) cases is consistent with Pioneer. “Where Rule 60(b) is invoked to set aside a default judgment, [a] court must both consider the Rule 55 equitable factors enumerated in [United Coin Meter Co. v. Seaboard Coastline R.R., 705 F.2d 839, 845 (6th Cir.1983) ], and find that one of the specific requirements of Rule 60(b) is met.” Thompson v. American Home Assurance Co., 95 F.3d 429, 433 (6th Cir.1996) (citing Manufacturers’ Indus." }, { "docid": "23383636", "title": "", "text": "not the timing of the motion. Here, plaintiffs motion plainly sought relief from judgment based on at torney mistake: grounds for relief under Rule 60(b)(1). Accordingly, it should have been analyzed under the standards applicable to that rule. The district court’s use of the criteria established for Rule 59(e) constitutes legal error. Rule 60(b)(1) provides that “[o]n motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment .... for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect. ...” It “is an extraordinary procedure” which “ ‘seeks to strike a delicate balance between two countervailing impulses: the desire to preserve the finality of judgments and the incessant command, of the court’s conscience that justice be done in light of all the facts.’ ” Cessna Fin. Corp., 715 F.2d at 1444 (quoting Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 401 (5th Cir.1981) (additional internal quotation marks omitted)). The rule “should' be liberally construed when substantial justice will thus be served.” Id. “The guidelines governing a district court’s consideration of a Rule 60(b)(1) motion ... are well established.” Id. at 1445. Whether the movant has demonstrated “mistake, inadvertence, surprise, or excusable neglect” is an issue to be “litigated on the merits.” Id. “The trial court must determine whether excusable neglect has in fact been established, resolving all doubts in favor of the party seeking relief.” Id. “[F]or purposes of Rule 60(b), ‘excusable neglect’ is understood to encompass situations in which failure to comply with a ... deadline is attributable to negligence.” Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 394, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). More generally, “[t]he ordinary meaning of ‘neglect’ is ‘to give little attention or respect’ to a matter, or, closer to the point for our purposes, ‘to leave undone or unattended to especially] through carelessness.’ The word therefore encompasses both simple, faultless omissions to act and, more commonly, omissions caused by carelessness.” Id. at 388,113 S.Ct. 1489 (quoting Webster’s Ninth New Collegiate Dictionary 791 (1983) and adding" }, { "docid": "22249969", "title": "", "text": "U.S. Postal Serv., 281 F.3d 1220, 1223 (9th Cir.2000). Federal Rule of Civil Procedure 60(b)(1) provides as follows: “On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: [] mistake, inadvertence, surprise, or excusable neglect.” Excusable neglect “encompass[es] situations in which the failure to comply with a filing deadline is attributable to negligence,” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 394, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), and includes “omissions caused by carelessness,” id. at 388, 113 S.Ct. 1489. 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. To determine when neglect is excusable, we conduct the equitable analysis specified in Pioneer by examining “at least four factors: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith.” Bateman, 231 F.3d at 1223-24 (citing Pioneer, 507 U.S. at 395, 113 S.Ct. 1489). Although Pioneer involved excusable neglect under Federal Rule of Bankruptcy Procedure 9006(b), in Briones v. Riviera Hotel & Casino, 116 F.3d 379 (9th Cir.1997), we concluded that the Pioneer standard governs analysis of excusable neglect under Rule 60(b)(1). See id. at 381, 113 S.Ct. 1489. A We conclude that the district court did not identify the Pioneer-Briones standard or correctly conduct the PioneerBriones analysis and that this was an abuse of discretion. While the district court conducted analysis related to the first three factors, the district court did not consider the fourth factor, good faith, or, as required under the circumstances of this case, the prejudice the Lemoges would suffer if their Motion was denied. The district court did not cite to Pioneer or Briones or list the Pioneer-Briones factors. In Bateman, we held that district courts should explicitly use the PioneerBriones framework for analysis of excusable neglect under Rule" }, { "docid": "12740933", "title": "", "text": "do not establish excusable neglect under Fed. R. Civ. P. 60(b)(1), Fed. R. Bankr. P. 9024, or any other valid ground for relief from the October 21, 2015 Order. Third, the Court finds that the Motion was not made within a reasonable time after the entry of the October 21, 2015 Order, as required by Fed. R. Civ. P. 60(c)(1). This precludes any relief under Rule 60(b)(1) or Rule 60(b)(6). Fourth, the Motion must be denied for the same reasons stated by the Court in its Order filed July 5, 2016 (Docket #38), which denied Debtor’s first motion seeking relief from the October 21, 2015 Order. Those reasons apply to the present Motion because the present Motion, like the first motion, ultimately is dependent on the Debtor’s argument that it was legal error for this Court to enter the October 21, 2015 Order. Fifth, to the extent the Motion seeks relief based on the “excusable neglect” provision in Fed. R. Civ. P. 60(b)(1), any alleged neglect by Debtor’s counsel, which at the time of the October 21, 2015 Order was Michelle Marrs and the firm of Marrs & Terry, PLLC, is attributable to the Debtor, for purposes of determining whether such neglect or mistake was excusable. See, e.g., Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 396-97, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993)(in determining whether “excusable neglect” is shown, “the proper focus is upon whether the neglect of [the movants] and their counsel was excusable”)(italics in original). In the Pioneer Investment case, the Supreme Court reasoned: “Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent. Any other notion would be wholly inconsistent with our system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent and is considered to have ‘notice of all facts, notice of which can be charged upon the attorney.’ ”... This principle applies with equal force here and requires that respondents be held accountable for the" }, { "docid": "23356496", "title": "", "text": "timing for service of the summons and complaint. It provides, in relevant part: If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period. FED. R. CIV. P. 4(m). Because Plaintiff moved to reissue the summonses for Defendants Yesta, Crapanzano, Caldwell, and O’Connor more than 120 days after the filing of his complaint, he must show that his failure to act was the result of excusable neglect. See FED. R. CIV. P. 6(b) (“When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion .. .upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect[.]”). “[T]he excusable neglect standard has consistently been held to be strict, and can be met only in extraordinary cases.” Marsh v. Richardson, 873 F.2d 129, 130 (6th Cir.1989) (internal quotation omitted) (interpreting “excusable neglect” in the context of Federal Rule of Appellate Procedure 4(a)(5)). The movant first must demonstrate that his failure to meet the deadline was a case of neglect. Neglect exists where the failure to do something occurred because of a simple, faultless omission to act, or because of a party’s carelessness. Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 388, 113 S.Ct. 1489, 123 L.Ed.2d 74, (1993); id. at 391, 395,113 S.Ct. 1489 (defining excusable neglect as used in FED. R. BANKR. P. 9006(b)(1) and noting it was patterned after FED. R. CIV. P. 6(b)). Second, the movant must establish that the" }, { "docid": "8418789", "title": "", "text": "prescribed or as extended by a previous order or (2) on motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect. FED. R. BANKR. P. 9006(b)(1). In Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), the Supreme Court addressed “excusable neglect” under Rule 9006(b)(1). The Supreme Court found that the rule grants a party “a reprieve to out-of-time filings that were delayed by ‘neglect.’ ” Id. at 388, 113 S.Ct. 1489. The Supreme Court held that neglect encompasses both simple, faultless omissions to act, and omissions caused by carelessness. Id. In addressing whether neglect is “excusable,” the Supreme Court stated, “[T]he determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” Id. at 394, 113 S.Ct. 1489. The Supreme Court identified several factors to consider, including: (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 in the control of the moving party; and (4) whether the moving party acted in good faith. Id. The Supreme Court noted that “inadvertence, ignorance of the rules, or mistakes construing the rules does not usually constitute ‘excusable neglect.’ ” Id. at 392, 113 S.Ct. 1489. Stein’s explanation for missing the deadline was that the preparation of fee applications was a sudden burden for which he had to hire and train personnel. He further stated that he had hired someone to prepare the fee applications, however, she had a death in the family and ultimately quit. He then hired someone else to prepare the fee applications and thought that he was taking the necessary steps to assure that they would be timely prepared. However, he also stated at the hearing that he was unaware that he had missed the deadline. Stein offered no explanation for not filing a timely request for an extension of time. The Court must conclude" }, { "docid": "17433646", "title": "", "text": "to the bankruptcy court but to grant her motion to vacate: 1) a legal conclusion of default unsupported by evidence (which we have already held to be the case, supra); and 2) the loss of her home being at stake. Further, she contends that the delay in filing the motion was caused by “excusable neglect” under Rule 60(b)(1), namely McGee’s not being aware of Dodd’s Order due to some unfortunate personal circumstances. In addition, Homeside’s pattern of returning checks and then claiming in the Affidavit that payment was never received could constitute “misrepresentation” under Rule 60(b)(3). Finally, Osborne suggests that her repeated good faith attempts to meet her obligations, justify relief from the bankruptcy court’s too-harsh judgment under Rule 60(b)(6). Homeside replies that McGee’s excuses are insufficient to constitute “excusable neglect” such that the motion was filed within a “reasonable time” after the judgment per Rule 60(b). Marcaida v. Rascoe, 569 F.2d 828, 830 (5th Cir.1978) (counsel’s preoccupation with other matters — including father’s death, own ill health, and the holidays — does not dispense with the necessity to comply with court rules) (citing U.S. v. Bowen, 310 F.2d 45, 47 (5th Cir.1962)). A decade ago, the Supreme Court addressed whether an attorney’s inadvertent failure to file within the established deadline can be “excusable neglect” within the meaning of Fed. R. BaNKR.P. 9006(b)(1) , and defined “excusable neglect” as follows: Because Congress has provided no other guideposts for determining what sorts of neglect will be considered “excusable,” we conclude that the determination is at bottom an equitable one, taking account of all the relevant circumstances surrounding the party’s omission. These include ... the dangers 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. Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 385, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) (emphasis added). One basic fact strongly supports Home-side: McGee did not notify the court" }, { "docid": "23383637", "title": "", "text": "“The guidelines governing a district court’s consideration of a Rule 60(b)(1) motion ... are well established.” Id. at 1445. Whether the movant has demonstrated “mistake, inadvertence, surprise, or excusable neglect” is an issue to be “litigated on the merits.” Id. “The trial court must determine whether excusable neglect has in fact been established, resolving all doubts in favor of the party seeking relief.” Id. “[F]or purposes of Rule 60(b), ‘excusable neglect’ is understood to encompass situations in which failure to comply with a ... deadline is attributable to negligence.” Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 394, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). More generally, “[t]he ordinary meaning of ‘neglect’ is ‘to give little attention or respect’ to a matter, or, closer to the point for our purposes, ‘to leave undone or unattended to especially] through carelessness.’ The word therefore encompasses both simple, faultless omissions to act and, more commonly, omissions caused by carelessness.” Id. at 388,113 S.Ct. 1489 (quoting Webster’s Ninth New Collegiate Dictionary 791 (1983) and adding emphasis). 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 Inv. Sews. Co., 507 U.S. at 395, 113 S.Ct. 1489 (discussing application of the excusable neglect standard of Fed. R. Bankr.P.R. 9006(b)(1)). Relevant factors include “the danger of prejudice to the [opposing 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. “‘[F]ault in the delay remains a very important factor — perhaps the most important single factor — in determining whether neglect is excusable.’ ” United States v. Torres, 372 F.3d 1159, 1163 (10th Cir.2004) (quoting City of Chanute v. Williams Natural Gas Co., 31 F.3d 1041, 1046 (10th Cir.1994)). An additional consideration is whether the moving party’s underlying claim is meritorious. See Cessna Fin. Corp., 715 F.2d at 1444-45 (discussing, in the context of a motion to set aside a" }, { "docid": "22442445", "title": "", "text": "the District Court’s erroneous procedural rulings until this Court decided it was without jurisdiction; now it is too late. Because Lowry’s 60(b) motion was not filed within the thirty days permitted for filing a notice of appeal from the denial of the 4(a)(5) motion, the District Court erred in considering the 60(b) motion. III. Even if the Rule 60(b) motion had been timely filed and properly granted so as to give the District Court the authority to revisit the Rule 4(a)(5) motion, we conclude that the District Court abused its discretion in finding that Lowry had shown excusable neglect. See Metropolitan Fed. Bank v. W.R. Grace & Co., 999 F.2d 1257, 1259 (8th Cir.1993) (standard of review). The time limits detailed in Federal Rule of Appellate Procedure 4 for filing a notice of appeal in the district court are “mandatory and jurisdictional.” Browder v. Director, Dep’t of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960)). 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" }, { "docid": "13491810", "title": "", "text": "circumscribed by public policy favoring finality of judgments and termination of litigation.’ ” United States v. 2621 Bradford Drive, 369 Fed.Appx. 663, 666 (6th Cir.2010) (quoting Blue Diamond Coal Co. v. Trs. of the UMWA Combined Benefit Fund, 249 F.3d 519, 524 (6th Cir. 2001) (internal quotation marks omitted)). Rule 60(b) provides grounds for relief from a final judgment for enumerated reasons, including “mistake, inadvertence, surprise, or excusable neglect.” Fed.R.Civ.P. 60(b)(1). “In determining whether relief is appropriate under Rule 60(b)(1), courts consider three factors: ‘(1) culpability—that is, whether the neglect was excusable; (2) any prejudice to the opposing party; and (3) whether the party holds a meritorious underlying claim or defense. A party seeking relief must first demonstrate a lack of culpability before the court examines the remaining two factors.’ ” Flynn v. People’s Choice Home Loans, Inc., 440 Fed.Appx. 452, 457-58 (6th Cir.2011) (quoting Gumble v. Waterford Twp., 171 Fed.Appx. 502, 506 (6th Cir.2006)). Clients are held accountable for their attorneys’ acts and omissions. McCurry v. Adventist Health Sys./Sunbelt, Inc., 298 F.3d 586, 594-95 (6th Cir.2002). “Thus, in assessing a claim of excusable neglect, ‘the proper focus is upon whether the neglect of [the parties] and their counsel was excusable.’ ” Id. at 595 (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 397, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993)). The Supreme Court has explained that for Rule 60(b) purposes, “excusable neglect” includes “situations in which the failure to comply with a filing deadline is attributable to negligence.” Pioneer, 507 U.S. at 394, 113 S.Ct. 1489. In Pioneer Investment Services, the Supreme Court set forth five factors for determining whether neglect is excusable: “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. at 395, 113 S.Ct. 1489. We have previously considered Pioneer in the context of a Rule 60(b) motion brought by plaintiffs asserting ADEA claims and emphasized" }, { "docid": "4204214", "title": "", "text": "Ackermann v. United States, 340 U.S. 193, 199, 71 S.Ct. 209, 212, 95 L.Ed. 207 (1950). This point was reinforced by the Sixth Circuit in McCurry v. Adventist Health System/Sunbelt, Inc., 298 F.3d 586, 592 (6th Cir.2002), where it held that a trial court erred in considering and granting relief to plaintiffs under Rule 60(b)(6) before analyzing the propriety of relief under Rule 60(b)(1). The Panel will therefore first address whether Rule 60(b)(1) authorized the bankruptcy court to vacate the dismissal order. The circumstances of this case do not fit within Rule 60(b)(1), which provides relief based on “mistake, inadvertence, surprise or excusable neglect.” Nothing in this case raises any suggestion that Debtor’s plan defaults and the resulting dismissal occurred due to mistake, inadvertence or surprise. The focus is thus whether “excusable neglect” fairly describes what occurred in this case. Although the issue determined by the Supreme Court in Pioneer was grounds for permitting a late filed claim under Fed. R. Bankr P. 9006, it also extensively discussed Rule 60(b)(1) and (6) and the concepts of “neglect” and “excusable neglect.” Quoting Webster’s Ninth New Collegiate Dictionary 791 (1983), the Supreme Court identified the ordinary meaning of “neglect” as “ ‘to give little attention or respect” to a matter, or closer to the point for our purposes, “to leave undone or unattended to especially] through carelessness.’ ” Pioneer, 507 U.S. at 388, 113 S.Ct. 1489 (emphasis in original). And in comparing “neglect” under Fed. R. Bankr.P. 9006 with “neglect” under Rule 60(b)(1), the Supreme Court distinguished acts attributable to negligence from acts attributable to reasons beyond a litigant’s control. Id. at 394-95, 113 S.Ct. 1489. Citing Klapprott v. United States, 335 U.S. 601, 613-14, 69 S.Ct. 384, 389-90, 93 L.Ed. 266 (1949), the Supreme Court noted that under Rule 60(b)(1), the former is “neglect” and the latter is not. Pioneer, 507 U.S. at 394-95, 113 S.Ct. 1489. Specifically, “Justice Frankfurter, although dissenting on other grounds, agreed that Klap-prott’s allegations of inability to comply with earlier deadlines took his case outside the scope of ‘excusable neglect’ ‘because “neglect” in the context of" }, { "docid": "22571000", "title": "", "text": "matter of “excusable neglect” and did not detract fi*om the merits of Canfield’s claims. On December 30, the district court denied Rule 60(b) relief. In its order, the court noted the reasons Canfield’s attorney offered for his error. It also specifically listed some of the other circumstances it considered in reaching its conclusion. Those circumstances included the facts: (1) that the defendants had notified Canfield of the requirements of G.O. #41; (2) that G.O. #41 expressly provides that a return date for a summary judgment motion will not be selected until the motion is fully briefed and ready for filing; and (3) that G.O. #41 includes the boldface, capitalized language reproduced above. Canfield now appeals the order denying her Rule 60(b) motion. II. Discussion We review the district court’s denial of a Rule 60(b) motion for an abuse of discretion. Kotlicky v. United States Fidelity & Guar. Co., 817 F.2d 6, 8 (2d Cir.1987). Prior to the Supreme Court’s decision in Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), we adhered to a firm rule that “[t]he excusable neglect standard can never be met by a showing of inability or refusal to read and comprehend the plain language of the federal rules.” In re Cosmopolitan Aviation Corp., 763 F.2d 507, 515 (2d Cir.1985) (rejecting a claim of excusable neglect under Fed. R.App. P. 4(a)(5)). And that rule applied with equal force to a party’s failure to comply with a local rule of court. See, e.g., Wakefield v. Northern Telecom, Inc., 813 F.2d 535, 542 (2d Cir.1987). In Pioneer, however, the Supreme Court “established a more liberal standard for determining whether there had been ‘excusable neglect.’ ” United States v. Hooper, 43 F.3d 26, 28 (2d Cir.1994). Although Pioneer interpreted “excusable neglect” in the context of Bankruptcy Rule 9006(b)(1), the Court analyzed that term as it is used in a variety of federal rules, including Rule 60(b)(1). See 507 U.S. at 393-94, 113 S.Ct. at 1497-98. For that reason, we have held that Pioneer’s more liberal definition of excusable neglect" }, { "docid": "2953855", "title": "", "text": "untimely underlying motion if the court determines that the failure to file it on time was the result of excusable neglect.”); United States v. Robinson, 430 F.3d 537, 541 (2d Cir.2005) (“The time limitations specified in Rule 33 are read in conjunction with Rule 45, which establishes how to compute and extend time.”). We have never discussed what constitutes “excusable neglect” in the context of a late-filed Rule 33 motion. However, the term “excusable neglect” has been interpreted in other procedural contexts. In Pioneer Investment Services Co. v. Brunswick Associates, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), the Supreme Court construed the phrase “excusable neglect” as it is used in Rule 9006(b)(1) of the Federal Rules of Bankruptcy Procedure: The ordinary meaning of “neglect” is “to give little attention or respect” to a matter, or, closer to the point for our purposes, “to leave undone or unattended to especially] through carelessness.” The word therefore encompasses both simple, faultless omissions to act and, more commonly, omissions caused by carelessness .... Hence, by empowering the coui’ts to accept late filings “where the failure to act was the result of excusable neglect,” Congress plainly contemplated that the courts would be permitted, where appropriate, to accept late filings caused by inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond the party’s control. * * * Because Congress has provided no other guideposts for determining what sorts of neglect will be considered “excusable,” we conclude that the determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission. Id. at 388, 395, 113 S.Ct. 1489 (internal citations omitted) (alteration in original). The Court then listed a number of nonexclusive factors to be balanced in making this equitable determination: “(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.” Nafziger, 467 F.3d at 522" }, { "docid": "11543822", "title": "", "text": "that is within its jurisdiction and thus subject to reopening or reconsideration.” Id. at 231 (Pooler, J., dissenting). The dissent concluded that though neither section 12(g) of the Act nor Fed.R.Civ.P. 60(b) gives the Commission jurisdiction, the Commission, nonetheless, “has inherent authority to reconsider or reopen its own deemed orders and Rule 60(b) provides the appropriate standard for acting on an application to reopen.” Id. Notwithstanding Le Frois, we believe that Hass was correctly decided and has not been undermined by more recent decisions. For these reasons, Hass is still binding and revision is unwarranted. Under Hass, section 10(a) is not a bar to Commission review, and it “has jurisdiction to entertain a late notice of contest under” the excusable neglect standard of Fed.R.Civ.P. 60(b)(1). 648 F.2d at 194-95. B. The Merits of the Fed.R.Civ.P. 60(b)(1) Excusable Neglect Claim. Harms Construction contends it is entitled to relief under Fed. R. Civ. P 60(b)(l)’s “excusable neglect” standard. Citing Pioneer Investment Services v. Brunswisk Assoc., 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), Harms Construction argues the “excusable neglect” standard must be broadly construed. See Robb v. Norfolk & W. Ry. Co., 122 F.3d 354, 361-62 (7th Cir.1997) (acknowledging that “ ‘excusable neglect’ has a new and broader meaning in the aftermath of the [Pioneer] decision”). Although Pioneer involved a Bankruptcy Rule, subsequent courts have held that Pioneer’s interpretation of excusable neglect extends to other federal procedural rules including Fed. R.Civ.P. 60(b)(1). See Robb, 122 F.3d at 362 n. 6 (noting that some courts have held it to be an abuse of discretion to not grant relief under Fed.R.Civ.P. 60(b)(1) in certain missed deadline situations “in light of Pioneer”). Pioneer’s broad construction of the excusable neglect standard applies here as well. Under Pioneer, the determination whether a party’s neglect is “ ‘excusable’ is essentially an equitable one, in which courts are to take into account all relevant circumstances surrounding a party’s failure to file.” Chemetron Corp. v. Jones, 72 F.3d 341, 349 (3d Cir.1995) (citing Pioneer, 507 U.S. at 395, 113 S.Ct. 1489). The Supreme Court identified, without limitation, these" }, { "docid": "8418788", "title": "", "text": "file a fee application by January 10, 2000. Although Stein filed the required fee applications, only two of the nineteen were filed by the deadline set by the Court. Seventeen of the fee applications were filed on January 18, 2000. At the hearing, Stein requested the Court to consider the untimely applications because his failure to comply with the deadline in the order was the result of excusable neglect. The Court must reject Stein’s request. The extension of a deadline in a court order is governed by Rule 9006(b)(1) of the Federal Rules of Bankruptcy Procedure, which provides: Except as provided in paragraphs (2) and (3) of this subdivision, when an act is required or allowed 'to be done at or within a specified period by these rules or by a notice given thereunder or by order of court, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if the request thereof is made before the expiration of the period originally prescribed or as extended by a previous order or (2) on motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect. FED. R. BANKR. P. 9006(b)(1). In Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), the Supreme Court addressed “excusable neglect” under Rule 9006(b)(1). The Supreme Court found that the rule grants a party “a reprieve to out-of-time filings that were delayed by ‘neglect.’ ” Id. at 388, 113 S.Ct. 1489. The Supreme Court held that neglect encompasses both simple, faultless omissions to act, and omissions caused by carelessness. Id. In addressing whether neglect is “excusable,” the Supreme Court stated, “[T]he determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” Id. at 394, 113 S.Ct. 1489. The Supreme Court identified several factors to consider, including: (1) the danger of prejudice to the opposing party; (2) the length of delay and" }, { "docid": "17111192", "title": "", "text": "final judgment was the result of excusable neglect. It will then turn to Sudan’s several arguments under Rule 60(b)(4) that these judgments, in whole or in part, are void for lack of subject-matter jurisdiction. Finally, it will address Sudan’s claims of nonjurisdictional error, which Sudan lodges under Rule 60(b)(6). Rule 60(B)(1): Sudan Has Failed To Demonstrate Excusable Neglect Sudan moves to vacate all of the judgments, except those in Mwila and Khaliq, on the basis of Rule 60(b)(1), which permits relief from a final judgment based on “mistake, inadvertence, surprise, or excusable neglect.” Sudan does not raise this argument in Mwila and Khaliq because relief under Rule 60(b)(1) must be sought not later than a year after the entry of judgment, see Fed. R. Civ. P. 60(c)(1), a deadline Sudan missed in those two cases. In the other cases, however, Sudan says relief under Rule 60(b)(1) is appropriate because' its failure to participate in this litigation until after the entry of judgment was the product of “excusable neglect.” See, e.g., Mem. Supp. Mot. to Vacate [Owens- ECF No. 367-1] (“Sudan’s Aliganga Mem.”) at 32-36. “‘[E]xcusable neglect’ is understood to encompass situations in which the failure to comply with a filing deadline is attributable to negligence.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 394, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). “[T]he determination of excusable neglect is an equitable matter” that depends on “several relevant factors: the risk of prejudice to the non-movant, the length of delay, the reason for the delay, including whether it was in control of the movant, and whether the mov-ant acted in good faith.” FG Hemisphere Assocs., LLC v. Democratic Republic of Congo, 447 F.3d 835, 838 (D.C.Cir.2006) (citing Pioneer, 507 U.S. at 395-397, 113 S.Ct. 1489). “[A] party seeking relief on grounds of excusable neglect” must also “assert a potentially meritorious defense.” Id. at 842. The burden of proving the right to relief under Rule 60(b)(1) rests on the movant seeking vacatur. See Gates v. Syrian Arab Republic, 646 F.3d 1, 5 (D.C.Cir.2011). On the facts of these cases, shouldering" }, { "docid": "22249968", "title": "", "text": "hearing, and confirmed the denial through an order filed one week later. The district court construed the Lemoges’ Motion as a motion for relief under Federal Rule of Civil Procedure 60(b)(1) for excusable neglect. Despite accepting that Caruana had suffered medical injuries requiring extensive treatment, the district court concluded that none of Caruana’s explanations justified the significant passage of time before the Motion was filed. The district court also concluded that the government would be unfairly prejudiced if the Lemoges’ action was reopened because the government relied on its dismissal in settling the Granite State Action. The Lemoges appeal the district court’s denial of their Motion. II A district court’s denial of relief from a final judgment, order, or proceed ing under Federal Rule of Procedure 60(b) is reviewed for abuse of discretion. De Saracho v. Custom Food Mach., Inc., 206 F.3d 874, 880 (9th Cir.2000). A district court abuses its discretion by denying relief under Rule 60(b) when it makes an error of law or relies on a clearly erroneous factual determination. Bateman v. U.S. Postal Serv., 281 F.3d 1220, 1223 (9th Cir.2000). Federal Rule of Civil Procedure 60(b)(1) provides as follows: “On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: [] mistake, inadvertence, surprise, or excusable neglect.” Excusable neglect “encompass[es] situations in which the failure to comply with a filing deadline is attributable to negligence,” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 394, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), and includes “omissions caused by carelessness,” id. at 388, 113 S.Ct. 1489. 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. To determine when neglect is excusable, we conduct the equitable analysis specified in Pioneer by examining “at least four factors: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for" } ]

[ { "docid": "18526032", "title": "", "text": "not synonymous with being unemployable. Further, the veteran has a wide range of employment options. Accordingly, a total rating based on individual unemployability due to a service-connected disability is not warranted. Sheral A. Mingo, BVA 90-26740 (June 20, 1990). The veteran filed a timely appeal to this Court. ANALYSIS I. Entitlement to Service Connection for Acquired Psychiatric Disorder. The BYA’s finding in this case that “[a]n acquired psychiatric disorder is not shown to have been present in service and was initially demonstrated several years following service separation” is a finding of fact. This Court reviews findings of fact under the “clearly erroneous” standard of review. Gilbert v. Derwinski, 1 Vet.App. 49, 52 (Oct. 12, 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. In this case, the first notations of a possible psychiatric disorder were not made until 1988 by a VA psychologist, Dr. Reston. A review of Dr. Re-ston’s treatment records shows no diagnosis or contention that appellant’s psychiatric condition is related to the visits to the mental health clinic during service or to anything other than appellant’s condition while he was treating her. Based on the lack of psychiatric diagnosis in the service medical records, the lack of reported connection between her condition in service and her current condition, and the report from the panel of psychiatrists, the BVA finding is certainly plausible. The BVA decision also contains a discussion adequate to comply with the “reasons or bases” requirement of 38 U.S.C. § 7104(d)(1) (formerly § 4004(d)(1)). Accordingly, as to the issue of service connection for acquired psychiatric disorder, the August 2, 1990, BVA decision is AFFIRMED. II. Entitlement to Compensation Based on Individual Unemployability. The applicable regulation is 38 C.F.R. § 4.16(b) which states in pertinent part: It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled...." } ]

[ { "docid": "22393280", "title": "", "text": "no change in appellant’s condition. R. at 2-3, 10, 15, 20-21, 25-26, 29-34. Both examinations make the same diagnosis of schizophrenia-paranoid type and stress “paranoid persecutory ideation” and “depressed mood.” R. at 25-26, 29-34. Most importantly, both examination reports show no improvement in either the appellant’s “social and industrial inadaptability” within the context of DC 9210 or “while working or actively seeking work” within the framework of 38 C.F.R. § 3.343(a) (1990). The BVA determined, without evidentiary support, that there was material improvement in his mental condition. Martin M. Karnas, loc. no. 923325, at 5-6 (BVA Sept. 13, 1989). This finding is clearly erroneous. In defining clearly erroneous, the Court has stated: The Supreme Court has defined the “clearly erroneous” standard as follows: “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed” _ If the [factfinderj’s account of the evidence is plausible in light of the record viewed in its entirety, the [reviewing court] may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. Gilbert v. Derwinski, 1 Vet.App. 49, 52 (citing United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948); Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985)). Here, because there is no evidence to support the BVA determination, it is obvious that a mistake has been committed, the finding is not plausible, there can be only one permissible view of the evidence, and, thus, the finding is clearly erroneous. B. 38 C.F.R. § 4.16(c) (1990), which deals with total disability ratings for compensation based on unemployability of the individual veteran, specifies: [Where] the only compensable service-connected disability is a mental disorder assigned a 70 percent evaluation, and such mental disorder precludes" }, { "docid": "15814744", "title": "", "text": "evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948); see also Hensley v. West, 212 F.3d 1255, 1263 (Fed.Cir.2000) (“[o]n factual matters, the findings of the BVA may be overturned by the Court of Appeals for Veterans Claims only if they are clearly erroneous”); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting U.S. Gypsum Co.). In determining whether a finding is clearly erroneous and should be overturned, “this Court is not permitted to substitute its judgment for that of the BVA on issues of material fact; if there is a ‘plausible’ basis in the record for the factual determinations of the BVA ..., [the Court] cannot overturn them.” Gilbert, 1 Vet.App. at 53. Also, the Court has the authority under 38 U.S.C. § 7252(a) to reverse Board decisions “as appropriate”. In addition, the Board is required to include in its decision a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; the statement must be adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 57. To comply with this requirement, the Board must analyze the credibil ity and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Gilbert, supra. 2. Board’s finding that veteran “remains employed”. The Board’s decision to deny the veteran a TDIU rating rested on two findings of fact: First, the BVA found that “the veteran ... has not lost his job and remains employed”. R. at" }, { "docid": "18676132", "title": "", "text": "Vet. App. at 146-47. The BVA decision was not based on the complete record as required by 38 U.S.C. §§ 5108 and 7104(b) (formerly §§ 3008 and 4004). This case, however, unlike Manio, warrants a reversal and remand for further proceedings for the reasons discussed below. C. 1. Clearly Erroneous Fact Finding When reviewing factual determinations made by the BVA, the Court’s scope of review is governed by 38 U.S.C. § 7261(a)(4) (formerly § 4061), which states that: (а) In any action brought under this chapter, the Court of Veterans Appeals, to the extent necessary to its decision and when presented, shall— (4) in the case of a finding of material fact made in reaching a decision in a case before the Department with respect to benefits under laws administered by the Secretary, hold unlawful and set aside such finding if the finding is clearly erroneous. A factual finding “is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948); Brannon v. Derwinski, 1 Vet.App. 314, 317 (1991); Spencer v. Derwinski, 1 Vet.App. 125, 126-27 (1991); Gilbert v. Derwinski, 1 Vet. App. 49, 52-53 (1990). If the [factfinder]’s account of the evidence is plausible in light of the record viewed in its entirety, the [reviewing court] may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. Gilbert, 1 Vet.App. at 52 (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985)). The Court must now determine, under the standard announced by the Supreme Court and in Gilbert, whether the BVA’s factual findings are clearly erroneous. In his reopened claim, the veteran presented medical opinions from three different physicians, who all" }, { "docid": "23653216", "title": "", "text": "under the provisions of 38 U.S.C. § 1112(c) and that neutropenia is not a disease entitled to presumptive service connection under that statute. Id. at 5. Under 38 U.S.C. § 7261(a)(4) (formerly § 4061(a)(4)), findings of material fact by the BVA may be set aside only if such findings are found to be “clearly erroneous.” Gilbert v. Derwinski, 1 Vet.App. 49, 52-53 (1990). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). In determining whether a finding is clearly erroneous, “this Court is not permitted to substitute its judgment for that of the BVA on issues of material fact; if there is a ‘plausible basis’ in the record for the factual determinations of the BVA ... we cannot overturn them.” Gilbert, 1 Vet.App. at 53. Based on the foregoing analysis, the Court finds that there is a plausible basis in the record for Board’s denial of service connection for appellant’s neutropenia. Moreover, although the Board, in its January 1991 decision, failed to analyze appellant’s claim under the provisions of 38 C.F.R. § 3.311b, the Board addressed this issue in its earlier October 1988 decision, and such error is harmless given the Board’s ultimate denial of appellant’s claim. Thompson v. Derwinski, 1 Vet.App. 251, 254 (1991). Accordingly, the Board’s denial of service connection for neutropenia, based on exposure to ionizing radiation, was made in full accordance with applicable laws and regulations, and that decision is AFFIRMED." }, { "docid": "18498626", "title": "", "text": "failed to provide adequate reasons or bases for its decision to deny a total rating based on its finding that appellant was capable of substantially gainful employment. Appellant, however, requests further relief based on the merits of his case. The issue of inadequate “reasons or bases” for the BVA’s conclusion is not dispositive of this case; therefore, the Court proceeds to decide the merits of appellant’s claim on other grounds. When reviewing factual determinations made by the BVA, the Court’s scope of review is governed by 38 U.S.C. § 7261(a)(4) (formerly § 4061), which states that: In any action brought under this chapter, the Court of Veterans Appeals, to the extent necessary to its decision and when presented, shall— (4) in the case of a finding of material fact made in reaching a decision in a case before the Department with respect to benefits under laws administered by the Secretary, hold unlawful and set aside such finding if the finding is clearly erroneous. A factual finding “is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948); Brannon v. Derwinski, 1 Vet.App. 314, 317 (1991); Spencer v. Derwinski, 1 Vet.App. 125, 126-27 (1991); Gilbert, 1 Vet.App. at 52-53. If the [factfinder]’s account of the evidence is plausible in light of the record viewed in its entirety, the [reviewing court] may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. Gilbert, 1 Vet.App. at 52 (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985)). The Court must now determine, under the standard announced by the Supreme Court and in Gilbert, whether the BVA’s factual findings are clearly erroneous. The veteran’s" }, { "docid": "15792843", "title": "", "text": "attaining the age of eighteen years and until completion of education or training (but not after attaining the age of twenty-three years), is pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101(4)(A); see also 38 C.F.R. § 3.57(a) (to same effect). In the instant case, the Board found that the appellant did not qualify as a “child” under 38 U.S.C. § 101(4)(A) and 38 C.F.R. § 3.57(a) and therefore concluded that there was no legal basis for his receipt of DIC or accrued benefits beyond what was “necessary to reimburse the person who bore the expense of last sickness and burial”. 38 U.S.C. § 5121(a)(5). Findings of fact by the BVA are entitled to judicial deference by this Court and are to be set aside only if clearly erroneous. See Lovelace v. Derwinski, 1 Vet.App. 73, 74 (1990); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). A finding is clearly erroneous only when “ ‘although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” Gilbert, supra (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). Furthermore, “if 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”. Gilbert, 1 Vet.App. at 53. The Court takes judicial notice of the appellant’s age as conceded in his reply brief (“I’m 70 years old” (Reply Br. at 1)). See Smith (Brady) v. Derwinski, 1 Vet.App. 235, 238 (1991) (finding that “Courts may take judicial notice of facts not subject to reasonable dispute” (citing Fed. R.Evid. 201(b) (1990))). There is no basis for concluding that the Board made a mistake in determining that, under the clear statutory and regulatory language, the appellant is not the “child” of the veteran or his widow, because the law excludes from the category of “child” anyone who is more than 23 years of" }, { "docid": "6781144", "title": "", "text": "August 1982, when he initially filed for service connection of skin cancer, and that he should be granted a rating in excess of 30%. R. at 428. The RO issued a Statement of the Case (R. at 432-44), and the appellant appealed to the Board (R. at 447-48). The Board decision on appeal determined that the appellant’s September 18,1990, correspondence “can be construed as an informal claim for service connection for skin cancer and should be used as the effective date of the veterans’ claim for skin cancer under 38 C.F.R. § 3.155.” The Board remanded the issue of an increased disability rating. II. ANALYSIS “Unless specifically provided otherwise in this chapter, the effective date of an award based on ... a claim reopened after final adjudication ... shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C. § 5110(a); see 38 C.F.R. §§ 3.400, 3.400(q)(l)(ii), 3.400(r) (1998). The determination of an effective date for entitlement for benefits is a finding of fact that the Court reviews under the “clearly erroneous” standard. See 38 U.S.C. § 7261(a)(4); Zink v. Brown, 10 Vet.App. 258, 259 (1997); Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990). Section 7261(a)(4), title 38, U.S.Code, provides that the Court must set aside a finding of fact as clearly erroneous when, “although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Gilbert, 1 Vet.App. at 52 (citingUnited States v. Unites States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). The Court may reach that conclusion only if there is no “plausible basis in the record” for the Board findings. See Zink and Gilbert, both supra. Once a claim is received, VA must review the claim, supporting documents, and oral testimony in a liberal manner to identify and adjudicate all reasonably raised claims. See Myers v. Derwinski, 1 Vet.App. 127, 129 (1991). Additionally, VA is required to apply all relevant law in" }, { "docid": "15814743", "title": "", "text": "not obviate our duty to consider the issue of TDIU under § 4.16(b), notwithstanding that the remand could produce a 70% rating and, in turn, that the Board would then be required to consider a TDIU award pursuant to paragraph (a). See Colayong v. West, 12 Vet.App. 524, 537 (1999) (“[b]ecause we cannot, at this time, definitively conclude that the appellant will be awarded a 100% scheduler or extras-chedular rating on remand, we thus proceed to consider the TDIU rating claim”). The determination under § 4.16(b) whether a veteran is unable to secure and follow substantially gainful employment is a question of fact subject to review in this Court under the “clearly erroneous” standard of review set forth in 38 U.S.C. § 7261(a)(4), which authorizes the Court to “hold unlawful and set aside [a finding of material fact made by the BVA in reaching a decision] ... if the finding is clearly erroneous”. 38 U.S.C. § 7261(a)(4); see Solomon v. Brown, 6 Vet.App. 396, 402 (1994). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948); see also Hensley v. West, 212 F.3d 1255, 1263 (Fed.Cir.2000) (“[o]n factual matters, the findings of the BVA may be overturned by the Court of Appeals for Veterans Claims only if they are clearly erroneous”); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting U.S. Gypsum Co.). In determining whether a finding is clearly erroneous and should be overturned, “this Court is not permitted to substitute its judgment for that of the BVA on issues of material fact; if there is a ‘plausible’ basis in the record for the factual determinations of the BVA ..., [the Court] cannot overturn them.” Gilbert, 1 Vet.App. at 53. Also, the Court has the authority under 38 U.S.C. § 7252(a) to reverse Board decisions “as appropriate”. In addition, the Board is required to include in its decision" }, { "docid": "20413232", "title": "", "text": "August 1991 application fell into neither category. As to the M21-1 provision, the Secretary points out that the provision cited by the appellant references chapter 27 of M21-1, which deals with reconsideration of claims based on additional evidence. The provisions of chapter 27 state that claims based on “evidence that is clearly redundant, cumulative, duplicative, or inconsequential” will not be routinely forwarded to adjudicators. M21-1, ¶ 27.02 (1966). Rather, “[wjhen such an application ... is based upon the same conditions for which a claim was formerly disallowed and new and material evidence is not submitted, the veteran will be informed that in view of the determination previously made, it will be necessary to deny the claim.... ” Id., ¶ 27.07. III. ANALYSIS The Board’s determination of the effective date for an award of VA benefits is a finding of fact reviewed by the Court under the “clearly erroneous” standard of review set forth in 38 U.S.C. § 7261(a)(4). See Link v. West, 12 Vet.App. 39, 46 (1998); Hanson v. Brown, 9 Vet.App. 29, 32 (1996). A finding of fact is clearly erroneous when the Court, after reviewing the entire evidence, “ ‘is left with the definite and firm conviction that a mistake has been committed.’ ” Gilbert v. Derwinski, 1 Vet.App. 49, 62 (1990) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). In an attempt to achieve an earlier effective date for his award of VA benefits, the appellant contends that his 1971 service-connection claim remained pending until it was finally awarded in 1997. He maintains that the 1971 claim, when read liberally, included a claim for his disability of a mood disorder, which had not been finally adjudicated. A “pending claim” is “[a]n application, formal or informal, which has not been finally adjudicated.” 38 C.F.R. § 3.160(c) (2009). “Consistent with this regulation ... this Court has held that a claim remains pending — even for years — if the Secretary fails to act on a claim before him.” Ingram v. Nicholson, 21 Vet.App. 232, 240 (2007); but see Adams" }, { "docid": "6869514", "title": "", "text": "substantive appeal to the BVA in April 1994. Also in April 1994, the appellant was afforded a VA examination for mental disorders wherein the examiner provided the following diagnosis: “Major depression, moderate (which seems to be related to his chronic problems with anxiety and depression secondary to his partial gastrecto-my in 1953 when he had 80% of his stomach removed).” The VARO granted the appellant service connection for anxiety and depression with a 30% evaluation effective March 30, 1993. In November 1994, the appellant filed an NOD specifically requesting entitlement to an earlier effective date. In January 1995, the appellant filed a substantive appeal to the BVA. In June 1996, the appellant testified at a personal hearing before a member of the BVA. On appeal to the BVA, the Board found that the appellant had not filed a claim, formal or informal, prior to March 30, 1993, for compensation benefits for his nervous disorder. The Board therefore concluded that the appellant was not entitled to an earlier effective date. II. ANALYSIS The Board’s factual findings regarding the date a formal or informal claim was filed, in order to determine the appropriate effective date for an award of VA benefits, are reviewed by this Court under the “clearly erroneous” standard. See 38 U.S.C. § 7261(a)(4); Stewart v. Brown, 10 Vet.App. 15, 17 (1997); KL v. Brown, 5 Vet.App. 205, 207 (1993); Quarles v. Derwinski, 3 Vet.App. 129, 135 (1992). “ ‘A finding of fact is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.’ ” Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). “[T]his Court is not permitted to substitute its judgment for that of the BVA on issues of material fact; if there is a ‘plausible’ basis in the record for the factual determinations of the BVA, ... [the Court] cannot overturn them.” Id. at 53. (a) Unless specifically" }, { "docid": "22393281", "title": "", "text": "entirety, the [reviewing court] may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. Gilbert v. Derwinski, 1 Vet.App. 49, 52 (citing United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948); Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985)). Here, because there is no evidence to support the BVA determination, it is obvious that a mistake has been committed, the finding is not plausible, there can be only one permissible view of the evidence, and, thus, the finding is clearly erroneous. B. 38 C.F.R. § 4.16(c) (1990), which deals with total disability ratings for compensation based on unemployability of the individual veteran, specifies: [Where] the only compensable service-connected disability is a mental disorder assigned a 70 percent evaluation, and such mental disorder precludes a veteran from securing or following a substantially gainful occupation ... the mental disorder shall be assigned a 100 percent schedular evaluation under the appropriate diagnostic code. (Emphasis added.) This regulation, which has no predecessor, became effective March 1, 1989, after appellant filed his appeal with the BVA but before it rendered its decision. (In passing, the Court queries whether there is any significant difference between the standard set out in § 4.16(c), “inability to secure or follow substantially gainful employment”, and the 100-percent rating criteria found in DC 9210, “total social and industrial inadaptability”; and, if not, whether indeed § 4.16(c) has any real efficacy. This query arises because 38 C.F.R. § 4.129 (1990) specifies that “social inadaptability is to be evaluated only as it affects industrial adaptability.”) When the law controlling an issue changes after a claim has been filed or reopened but before the administrative or judicial review process has been concluded, the question arises as to which law now governs. The Court turns, for guidance, to four contemporary Supreme Court decisions" }, { "docid": "6781145", "title": "", "text": "of fact that the Court reviews under the “clearly erroneous” standard. See 38 U.S.C. § 7261(a)(4); Zink v. Brown, 10 Vet.App. 258, 259 (1997); Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990). Section 7261(a)(4), title 38, U.S.Code, provides that the Court must set aside a finding of fact as clearly erroneous when, “although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Gilbert, 1 Vet.App. at 52 (citingUnited States v. Unites States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). The Court may reach that conclusion only if there is no “plausible basis in the record” for the Board findings. See Zink and Gilbert, both supra. Once a claim is received, VA must review the claim, supporting documents, and oral testimony in a liberal manner to identify and adjudicate all reasonably raised claims. See Myers v. Derwinski, 1 Vet.App. 127, 129 (1991). Additionally, VA is required to apply all relevant law in adjudicating the claim, even though the legal issue was not raised by the appellant. See EF v. Derwinski 1 Vet.App. 324, 326 (1991); see also Collier v. Derwinski, 2 Vet.App. 247, 251 (1992) (holding that although appellant had not filed specific form asking for individual unemployability, an informal claim was raised because he had continually stated he was unable to work due to his service-connected mental disorder); Akles v. Derwinski 1 Vet.App. 118, 121 (1991). Where such a review “reasonably reveals that the claimant is seeking a particular benefit, the Board is required to adjudicate the issue of the claimant’s entitlement to such a benefit or, if appropriate, to remand the issue to the RO for development and adjudication of the issue.” Suttmann v. Brown, 5 Vet.App. 127, 132 (1993); see generally Servello v. Derwinski 3 Vet.App. 196, 198-200 (1992) (discussing evidence that could show “a belief’ by the veteran that he was entitled to a particular benefit). Here, it is undisputed that the appellant had raised a claim for service connection for his skin" }, { "docid": "22877440", "title": "", "text": "of the other evidence of record and make new factual determinations as to whether the 44-month “gap” has been filled adequately by the new evidence. B. “Clearly Erroneous” Standard of Review 38 U.S.C. § 4061(a)(4) (1988) provides: In any action ... the Court of Veterans Appeals, to the extent necessary to its decision and when presented, shall in the case of a finding of material fact made in reaching a decision in a case before ... [the Department], hold unlawful and set aside such finding if the finding is clearly erroneous. (Emphasis added.) This Court expounded upon this standard in Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990), quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948), as follows: “ ‘A finding is “clearly erroneous” when although there is evidence to support it, the reviewing court on the entire record is left with the definite and firm conviction that a mistake has been committed.’ ” To provide further explanation of the standard, Gilbert quoted Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985), as follows: “If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. United States v. Yellow Cab Co., 338 U.S. 338, 342 [70 S.Ct. 177, 179, 94 L.Ed. 150] (1949); see also Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844 [102 S.Ct. 2182, 72 L.Ed.2d 606] (1982).” Gilbert, at 52. As discussed in Gilbert, the legislative history of the VJRA clearly demonstrates that Congress intended the “clearly erroneous” standard applicable to fact review in Article III courts of appeals to be applied by this Court in reviewing BVA findings of material fact. Id. at 52. In sum, “under the ‘clearly erroneous’" }, { "docid": "19328527", "title": "", "text": "to submit to VA examination because of televised reports regarding care at VA Medical Centers not considered good cause); Olson v. Principi, 3 Vet.App. 480, 482-83 (1992) (financial hardship associated with traveling to VA examination site not considered good cause for failure to appear); Dusek, 2 Vet.App. at 521-22 (veteran’s allegation of medical malpractice and racial discrimination not considered good cause for failure to appear for VA examination). B. Claim on the Merits Having resolved that any error by the Board in finding that, under § 3.158, Mr. Kowalski abandoned his claim was non-prejudicial, we now look to the Board’s determination on the merits of the claim. The Board’s determination of service connection is reviewed by the Court under the “clearly erroneous” standard of review set forth in 38 U.S.C. § 7261(a)(4). See Rose v. West, 11 Vet.App. 169, 171 (1998). “ ‘A finding of fact is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.’ ” Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). Service connection is awarded to a claimant where there is (1) medical evidence of a current disability; (2) medical evidence or, in certain circumstances, lay evidence of in-service incur-rence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet.App. 247, 253 (1999); 38 C.F.R. § 3.303(a) (2003). When rendering its decision, the Board must consider all relevant evidence of record and address in its decision all potentially applicable provisions of law and regulation. See Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991); see 38 U.S.C. § 7104(a)(d)(1). The Board also is required to include in its decision a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record;" }, { "docid": "23646067", "title": "", "text": "This, appellant asserts, was the cause of his purported in-service aggravation. The resulting decision of the hearing officer continued the denial of appellant’s claim on the grounds that, although he had been treated for the knee condition while in service, the overall evidence did not show aggravation in service. The hearing officer noted the fact that there was injury to the knee prior to service and no evidence of a new injury to the knee in service. Appellant appealed the denial to the BVA, which denied his claim because it found the knee condition was the same upon entry as upon separation from service and thus was not aggravated in service. William F Hunt, Jr., loc. no. 007992, at 6. ANALYSIS I. This Court is directed to review factual determinations by the BVA under the “clearly erroneous” standard of 38 U.S.C. § 4061(a)(4) (1988). In Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990), the Court stated that it is not the function of this Court “to decide whether a veteran was injured or whether any such injury occurred in or was aggravated during military service.” Rather, the Court must determine whether a factual determination of the BVA is clear error. Id. A finding is clearly erroneous when “although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Gilbert, at 52 (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)). Furthermore, “[i]f the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it_” Gilbert, at 52 (quoting United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 179, 94 L.Ed. 150 (1949)). In this case, the BVA found that although the right knee was “intermittently symptomatic with activity during service,” the knee condition did not increase in severity during service. William F. Hunt, Jr., loc no. 007992, at 6. Although several in-service diagnoses noted" }, { "docid": "19209515", "title": "", "text": "in conflict with, the “one review on appeal to -the Secretary” provision of section 7104(a). III. REMEDY Mr. Padgett seeks reversal of the Board decision based on his argument that the Board could not properly rely on either VA medical opinion, leaving the opinions of Drs. Shaw and Thoburn as the only medical opinions properly before the Board. Although the Court rejects the contention that the Board could not consider the VA medical opinions for any purpose, we nevertheless find reversal appropriate as to the denial of Mr. Padgett’s secondary-service-connected right-hip-disability claim. Additionally, remand is appropriate with regard to his claims for presumptive and direct service connection for his right-hip disability. A. Board Decision as to Secondary Service Connection for Right-Hip Disability will be Reversed Secondary service connection may be granted for any disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2004); see Allen, 7 Vet.App. at 448 (allowing secondary service connection for aggravation of non-service-connected condition by service-connected disability). The Board’s decision regarding the finding of secondary service connection is a finding of fact that the Court reviews under the “clearly erroneous” standard of review set forth in 38 U.S.C. § 7261(a)(4). See Harder v. Brown, 5 Vet.App. 183, 187 (1993). In this regard, section 7261(a)(4) directs the Court to “reverse or set aside” any “finding of material fact adverse to the claimant ... if the finding is clearly erroneous.” 38 U.S.C. 7261(a)(4). “ ‘A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (emphasis added) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). Of course, if the Board’s “ ‘account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it.’ ” Gilbert, 1 Vet.App. at 52 (quoting Anderson v. City of Bessemer" }, { "docid": "16946684", "title": "", "text": "separation from service. Otherwise, the effective date is the “date of receipt of claim or date entitlement arose, whichever is later.” 38 C.F.R. § 3.400(o) (1997); see 38 U.S.C. § 5110(a). Under 38 U.S.C. § 5110(b)(2), “[t]he effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.” There is no dispute that the appellant filed a claim for SMC in 1980 and that, prior to the 1996 Board decision here on appeal, the Board considered the veteran’s May 20, 1980, SMC claim to be a pending claim (R. at 25) until its February 1991 decision. No determination was made between 1980 and 1990 of when the appellant’s entitlement to SMC arose. Normally, the determination of an effective date for entitlement for benefits is a finding of fact that the Court reviews under the “clearly erroneous” standard. See 38 U.S.C. § 7261(a)(4); Scott v. Brown, 7 Vet.App. 184, 188 (1994) (quoting Quarles v. Derwinski, 3 Vet.App. 129, 135 (1992)); Gilbert v. Derwinski 1 Vet.App. 49 (1990). The Court must set aside a finding of fact as clearly erroneous when, “although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Gilbert, 1 Vet.App. at 52 (citing United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). See also 38 U.S.C. § 7261(a)(4). The Court may reach that conclusion only if there is no “plausible basis in the record” for the Board findings. See Quarles and Gilbert, both supra. The Board found that the appellant did not become entitled to SMC before October 24, 1990, and that, therefore, he was not entitled to an earlier effective date. The Board’s decision stated: With respect to the prospect of according an earlier effective date for the grant of special monthly compensation, evidence submitted contemporaneous with and subsequent to the veteran’s May 1980 claim" }, { "docid": "23653215", "title": "", "text": "prevent a veteran from petitioning the VA to issue a new rule or amend the existing rules to add a disease or condition to the list of radiogenic diseases. Since neutropenia is not one of the recognized “radiogenic diseases” set forth in 38 C.F.R. § 3.311b(b)(2), appellant was precluded from establishing service connection on a direct basis based solely on his alleged exposure to ionizing radiation. Unlike the recognized “radiogenic diseases” which, by regulation, are granted a presumption period, neutropenia has no presumption period. 38 U.S.C. § 1110. In denying the appellant’s claim for service connection for neutropenia in its January 1991 decision, the BVA found that appellant’s submitted service medical records revealed no sign or symptom of bone marrow dysfunction or radiation illness during service, and that neutropenia was not shown until July 1988. Combee, BVA 91-01899, at 4. The Board also found that based upon its review of the entire claim file, there was no evidence that the veteran suffers from leukemia or a malignancy for which presumptive service connection would be warranted under the provisions of 38 U.S.C. § 1112(c) and that neutropenia is not a disease entitled to presumptive service connection under that statute. Id. at 5. Under 38 U.S.C. § 7261(a)(4) (formerly § 4061(a)(4)), findings of material fact by the BVA may be set aside only if such findings are found to be “clearly erroneous.” Gilbert v. Derwinski, 1 Vet.App. 49, 52-53 (1990). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). In determining whether a finding is clearly erroneous, “this Court is not permitted to substitute its judgment for that of the BVA on issues of material fact; if there is a ‘plausible basis’ in the record for the factual determinations of the BVA ... we cannot overturn them.” Gilbert, 1 Vet.App. at 53. Based on the foregoing analysis, the Court" }, { "docid": "22877439", "title": "", "text": "that evidence in the context of the evidence already of record justify a change in “the former disposition of the claim”? 38 U.S.C. § 3008 (1988). Since the prior evidence of record established without dispute a continuity of symptomatology from 1972 to the time of the claim, the question under section 3008 should thus have been whether the new evidence filled the gap in the evidence of continuity from the veteran’s discharge in June 1968 until the veteran consulted Kaiser in March 1972. Instead, the BVA concluded that the reopened claim should be denied because the new evidence, standing alone, “[did] not establish a chronic urinary/bladder disability” or “present a new factual basis for a grant of service connection_” McAr-thur Jones, loc. no. 929115, at 7-8 (BVA Oct. 10, 1989). Because we are not satisfied that this was the correct standard to be applied under section 3008, we must vacate the decision and remand the case to the BVA for it, under the new regulation, to assess the new and material evidence in the context of the other evidence of record and make new factual determinations as to whether the 44-month “gap” has been filled adequately by the new evidence. B. “Clearly Erroneous” Standard of Review 38 U.S.C. § 4061(a)(4) (1988) provides: In any action ... the Court of Veterans Appeals, to the extent necessary to its decision and when presented, shall in the case of a finding of material fact made in reaching a decision in a case before ... [the Department], hold unlawful and set aside such finding if the finding is clearly erroneous. (Emphasis added.) This Court expounded upon this standard in Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990), quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948), as follows: “ ‘A finding is “clearly erroneous” when although there is evidence to support it, the reviewing court on the entire record is left with the definite and firm conviction that a mistake has been committed.’ ” To provide further explanation of the standard, Gilbert quoted Anderson" }, { "docid": "22343121", "title": "", "text": "entitlement, or evidencing a belief in entitlement, to a benefit.” Under 38 C.F.R. § 3.155 (1991), the submission of certain medical records may constitute an “informal claim” for an increase in disability compensation. The BVA concluded that the veteran’s low back disorder (by then comprised of lumbosacral strain and degenerative joint disease) did not become 20% disabling until November 9, 1984, the date of one of Dr. Childress’ letters, and that, therefore, the veteran was not entitled to an earlier effective date. Resolution of the question of whether the Board accurately determined the effective date requires the Court to decide whether the Board erred in its factfinding. The Court reviews questions of fact using the “clearly erroneous” standard of review. Under 38 U.S.C. § 7261(a)(4) (formerly § 4061) and Gilbert v. Derwinski, 1 Vet.App. 49 (1990), the Court must set aside a finding of fact as clearly erroneous when the Court is left with a definite and firm conviction, after reviewing the entire evidence, that a mistake has been committed. The Court may reach that conclusion only if there is no “ ‘plausible basis in the record’ ” for the BVA findings at issue. Gilbert, 1 Vet.App. at 52-53 (quoting Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985)); see Moore (Robert) v. Derwinski, 1 Vet.App. 356, 358 (1991). Thus, if there were in the record in this case a plausible basis for the BVA’s finding that the evidence in the veteran’s file did not, prior to November 9, 1984, satisfy the criteria for a 20% rating, that finding would necessarily stand. In determining whether or not a plausible basis exists for the Board’s decision, the Court has evaluated (1) whether symptoms warranting a 20% rating were ascertainable prior to November 9, 1984, and (2) even if symptoms warranting a 20% rating were ascertainable earlier, whether a claim had been submitted within a year of their manifestation. Under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5295 (1991), a 10% disability rating for lumbosacral strain will be awarded if the claimant" } ]

[ { "docid": "505282", "title": "", "text": "of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. Notwithstanding the exclusions provided by clause (G) of the last sentence of this paragraph, the term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts. For the purposes of section 1692f(6) of this title, such term also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests. The term does not include— (A) any officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor . (G) ... to the extent [collection] activity . . . (iii) concerns a debt which was not in default at the time it was obtained . Moreover, § 1692a(4) states: The term ‘creditor’ means any person who offers or extends credit creating a debt or to whom a debt is owed, but such term does not include any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another. Thus, it clearly appears that the “debt collectors” covered by DCPA are those who regularly collect debts for others and not creditors of consumers even though the debt is created between the consumer and a third person and subsequently assigned to a creditor such as FACC if such assignment is made before default. See 1977 U.S. Code Cong, and Admin. News p. 1695, at 1697-98. From the record herein, it appears that the mobile home purchased by plaintiffs from Hernando was financed by FACC by the assignment of the retail installment contract to such defendant prior to any alleged default. Furthermore, it is manifestly clear that FACC does not collect or attempt to collect debts owed to another" } ]

[ { "docid": "14463878", "title": "", "text": "FDCPAJRFDCPA. The Complaint next alleges that Defendants engaged in abusive debt collection practices in violation of federal and state laws regulating debt collection. Compl. ¶¶ 34-49. FDCPA regulates only “debt collectors.” See 15 U.S.C. §§ 1692(e)-(f). “Debt collector” is defined as “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” § 1692a(6). “Debt Collector” does not include persons who collect debt “to the extent such activity ... (ii) concerns a debt which was originated by such person; [or] (iii) concerns a debt which was not in default at the time it was obtained by such person ....” § 1692a(6)(F). FDCPA’s definition of debt collector “does not include the consumer’s creditors, a mortgage servicing company, or any assignee of the debt, so long as the debt was not in default at the time it was assigned.” Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir.1985). Nothing in the complaint suggests that Barclays is a “debt collector.” Therefore, the FDCPA is not triggered by Plaintiffs allegations. The absence of a violation of FDCPA results in failure of Plaintiffs California RFDCPA claim, as the scope of California’s law mirrors the federal statute. See Cal. Civil Code, § 1788, et seq. Moreover, California Civil Code 2924(b) exempts the trustees’ acts of recording and servicing the required notice of default and notice of sale from RFDCPA’s scope. In the context of their unfair debt collection claims, Plaintiffs also allege that “none of Defendants have legal authority to enforce or collect on the Loan, as LENDER is not the note holder of said debt and can therefore not authorize TRUSTEE or any one else to enforce or collect thereon.” Compl. ¶ 43. This is a blatant misrepresentation of the law. It is well-established that non-judicial foreclosures can be commenced without producing the original promissory note. Nonjudicial foreclosure under deeds of trust is governed by" }, { "docid": "5087745", "title": "", "text": "any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests. 15 U.S.C. § 1692a(6). “The term does not include,” however, “any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity ... concerns a debt which was originated by such person [or] ... concerns a debt which was not in default at the time it was obtained by such person.” 15 U.S.C. § 1692a(6)(F)(iii) & (iii). Indeed, “[t]he legislative history of section 1692a(6) indicates conclusively that a debt collector does not include the consumer’s creditors, a mortgage servicing company, or an assignee of a debt, as long as the debt was not in default at the time it was assigned.” Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir.1985) (citing S.Rep. No. 95-382, 95th Cong., 1st Sess. 3, reprinted in 1977 U.S.Code Cong. & Ad. News 1695,1698; Kizer v. Finance America Credit Corp., 454 F.Supp. 937, 939 (N.D.Miss.1978)). Mr. Jara never specifically alleges that Aurora was a “debt collector,” but he does allege that Aurora was retained to engage in debt collection activities after he defaulted on his loan. Fourth AC, ECF No. 72, ¶ 14. This allegation — which contradicts Mr. Jara’s attempts in his previous complaints to allege that it was Cal Western who was retained as a “debt collector” — is belied by the notice submitted by Defendants (and of which this court took judicial notice) that shows that Aurora became the servicer of Mr. Jara’s loan well before he defaulted on it. RJN, ECF No. 62, Ex. 4. The notice states: “As you were previously notified by Pacific Community Mortgage, the servicing of your loan, that is, the right to collect payment from you, is being transferred to Aurora Loan Services (“Aurora”) effective March 01, 2006. The assignment, sale of transfer of the servicing of your loan does not affect any terms or conditions of your loans instruments .... ” Id. Mr. Jara did" }, { "docid": "5087742", "title": "", "text": "No. 49, ¶¶ 13-18. Although he did not specify it, his claim against Cal Western was for violation of 15 U.S.C. § 1692g(a), which provides that within five days of making initial contact with a debtor “in connection with the collection of any debt,” a debt collector must send the debtor a written notice containing the amount of the debt, the name of the creditor, the time period in which the validity of the debt may be challenged, and instructions explaining how the debtor may obtain further evidence of the debt and information about the creditor. Because Mr. Jara did not sufficiently allege that Cal Western was a “debt collector” and could not sufficiently allege that Cal Western engaged in debt collection activity, the court dismissed his claim under 15 U.S.C. § 1692g(a) with prejudice. 12/14/2011 Order, ECF No. 68 at 5-9. In his Fourth Amended Complaint, Mr. Jara, for the first time, alleges a FDCPA against Aurora. Fourth AC, ECF No. 72, ¶¶ 13-18. Mr. Jara alleges that “[a]fter this loan went into default, the unidentified true owner retained Aurora to engage in debt collection activities” and that “[d]ebt collection of delinquent loans is a principal part of the business of Aurora.” Fourth AC, ECF No. 72, ¶ 14. He goes on to allege that he and Aurora entered into a loan modification and that he was current on his payments (as modified by the agreement) when Aurora instructed Cal Western to begin foreclosure proceedings. Id., ¶¶ 15-16. Mr. Jara alleges that Aurora “instructed Cal Western not to provide [Mr.] Jara [with] the Debt Validation Notice required by the FDCPA.” Id., ¶ 16. He further alleges that Aurora engaged in false, deceptive, and misleading representations by preparing “forbearance and modification agreements” (which he alleges were abusive and misleading) and presenting them to him “with the express oral representation [that he] would avoid a nonjudicial trustee sale and foreclosure if he complied with [their terms],” when, in reality, Aurora would go on to instruct Cal Western to proceed with foreclosure anyway. Id. But there is a fatal problem with Mr." }, { "docid": "5087738", "title": "", "text": "authority to act on behalf of the new creditor; (D) the location of the place where transfer of ownership of the debt is recorded; and (E) any other relevant information regarding the new creditor. 15 U.S.C. § 1641(g)(1) (emphasis added). This TILA claim, which is new to Mr. Jara’s. Fourth Amended Complaint, fails. 15 U.S.C. § 1641(g) only applies to creditors who are new owners or assignees of mortgage loan, and Mr. Jara does not allege that Aurora is a new owner or assignee of his loan. He states that, although he believes Pacific transferred ownership of his loan at some point in time, he does not know to whom it was transferred. Fourth AC, ECF No. 72, ¶¶ 2, 10, 12. In fact, he uses his Fourth Amended Complaint to ask Aurora who the owner is. Id., ¶ 10, 12. Moreover, publicly-filed documents submitted by Defendants suggest that Aurora became a servicer, not an owner or assignee, of Mr. Jara’s loan. See RJN, ECF No. 62, Ex. 4. Without an allegation that Aurora, as owner or assignee of his loan, failed to notify him in writing of a transfer of ownership of his loan that occurred on or after May 19, 2009, Mr. Jara’s claim for violation of § 1641(g) must fail. To the extent that Mr. Jara attempts to allege a claim for violation of 15 U.S.C. § 1641(f)(2) (as he attempted to do in his previous complaints), his claim still fails. As ■ Defendants correctly point out, 15 U.S.C. § 1641(f)(2) provides in relevant part: “Upon written request by the obligor, the servicer shall provide the obligor, to the best knowledge of the servicer, with the name, address, and telephone number of the owner of the obligation or the master servicer of the obligation.” 15 U.S.C. § 1641(f)(2). However, a servicer is not to be treated as the assignee of an obligation unless the servicer is also the owner of that obligation. 15 U.S.C. §§ 1641(f)(1) (“A servicer of a consumer obligation arising from a consumer credit transaction shall not be treated as an assignee of such" }, { "docid": "23489896", "title": "", "text": "a “debt collector.” The district court held that it did not. We agree. A long and somewhat convoluted definition of the term “debt collector” is set forth in 15 U.S.C. § 1692a(6). The definition begins as follows: “The term ‘debt collector’ means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” If the principal purpose of the business conducted by Credit Acceptance Corporation is the collection of consumer debts owed to Credit Acceptance, the company might seem to be a debt collector under the first part of the quoted sentence even if it does not regularly collect or attempt to collect debts “owed or due another.” As the district court noted, however, quoting Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir.1985), “The legislative history of section 1692a(6) indicates conclusively that a debt collector does not include the consumer’s creditors ... or an assignee of a debt, as long as the debt was not in default at the time it was assigned. See S.Rep. No. 95-382, 95th Cong., 1st Sess. 3, reprinted in 1977 U.S.Code Cong. & Ad. News 1695, 1698. See also Kizer v. Finance America Credit Corp., 454 F.Supp. 937, 939 (N.D.Miss.1978).” The plaintiffs do not challenge this reading of § 1692a(6). They argue instead that an assignment of a retail installment sales con tract to Credit-Acceptance pursuant to the servicing agreement, even though regular on its face, “is not a valid assignment.” Noting that the servicing agreement does not obligate Credit Acceptance to pay the ear dealer anything up front, the plaintiffs contend that the purpose of the purported assignment is merely to facilitate collection of the debt for the dealer. Credit Acceptance, in other words, “is collecting the debts that are owed to Classic....” We do not find the plaintiffs’ argument persuasive. Once an installment sales contract has been assigned to Credit Acceptance, in" }, { "docid": "5087764", "title": "", "text": "to judicial notice. Id. . To the extent that Mr. Jara attempts to rely upon Cal Western’s foreclosure-related acts to allege a FDCPA claim against Aurora, his claim also fails because, as described above, the court dismissed with prejudice Mr. Jara’s FDCPA claim against Cal Western based on those acts. . Because Mr. Jara's inability to allege that Aurora is a \"debt collector” is fatal to his FDCPA claim, the court need not address the parties' arguments about whether Aurora’s conduct, even if it could be a \"debt collector,” constituted debt collection activities. See MTD, ECF No. 74-1 at 24-25; Opposition, ECF No. 78 at 3-6; Reply, ECF No. 84 at 4. The court will say, however, that Mr. Jara’s attempt to use the Consumer Financial Protection Bureau’s amicus brief in Birster v. American Home Mortgage Servicing, Inc., No. 11-13574-G (11th Cir. Dec. 22, 2011) is misplaced because the brief discusses claims against a loan servicer who began servicing the plaintiffs’ loan after default occurred, thereby avoiding the \"debt collector” definition problem discussed above. That is not the case here. . \"Under California law, in an action to set aside a trustee’s sale, a plaintiff must demonstrate that he has made a 'valid and viable tender [offer] of payment of the indebtedness.’ \" Pantoja v. Countrywide Home Loans, Inc., 640 F.Supp.2d 1177, 1184 (N.D.Cal.2009) (quoting Karlsen v. American Sav. & Loan Assn., 15 Cal.App.3d 112, 117, 92 Cal. Rptr. 851 (1971)); see also Arnolds Mgmt. Corp. v. Eischen, 158 Cal.App.3d 575, 578, 205 Cal.Rptr. 15 (1984) (“[A]n action to set aside a trustee's sale for irregularities in sale notice or procedure should be accompanied by an offer to pay the full amount of the debt for which the property was security.”) \"A plaintiff must (1) demonstrate a willingness to pay and (2) show the ability to pay.” Pantoja, 640 F.Supp.2d at 1184 (citing In re Worcester, 811 F.2d 1224, 1231 (9th Cir.1987)) (emphasis added). Here, Mr. Jara merely alleges that he \"is prepared to pay” the \"lien of Aurora.” Fourth AC, ECF No. 72, p 20. He does not allege" }, { "docid": "22302902", "title": "", "text": "a debt collector as “any person ... who regularly collects or attempts to collect ... debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). The term “debt collector” does not include: [A]ny person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity ... (ii) concerns a debt which was originated by such person [or] (iii) concerns a debt which was not in default at the time it was obtained by such person. 15 U.S.C. § 1692a(6)(G). The legislative history of section 1692a(6) indicates conclusively that a debt collector does not include the consumer’s creditors, a mortgage servicing company, or an assignee of a debt, as long as the debt was not in default at the time it was assigned. See S.Rep. No. 95-382, 95th Cong., 1st Sess. 3, reprinted in 1977 U.S.Code Cong. & Ad.News 1695, 1698. See also Kizer v. Finance America Credit Corp., 454 F.Supp. 937, 939 (N.D. Miss.1978). In this case, the FDCPA is inapplicable, since neither Hammond nor FNMA is a debt collector. Hammond sold the Perry loan to FNMA approximately IV2 months after the closing and approximately 2 months before the Perrys were in default. After Hammond sold the loan, it continued to service the loan for FNMA. Thus, FNMA was a bona fide assignee of a debt, and Hammond was a bona fide mortgage servicing company. The district court correctly granted Hammond’s and FNMA’s motions for directed verdicts on this claim. The Perrys also argue that the district court improperly granted Hammond’s and FNMA’s motions for directed verdicts for the alleged violations of the TDCA. As an initial matter, there is no dispute that Hammond and FNMA fall within the broader definition of a debt collector under the TDCA. See Tex.Rev.Civ.Stat.Ann. art. 5069-11.01(c) (“ ‘Debt collector’ means any person engaging directly or indirectly in debt collection”). Article 5069-11.03 makes it unlawful for an unidentified debt collector using a telephone to call the debt- or “with the willful intent to annoy or harass or" }, { "docid": "5087746", "title": "", "text": "454 F.Supp. 937, 939 (N.D.Miss.1978)). Mr. Jara never specifically alleges that Aurora was a “debt collector,” but he does allege that Aurora was retained to engage in debt collection activities after he defaulted on his loan. Fourth AC, ECF No. 72, ¶ 14. This allegation — which contradicts Mr. Jara’s attempts in his previous complaints to allege that it was Cal Western who was retained as a “debt collector” — is belied by the notice submitted by Defendants (and of which this court took judicial notice) that shows that Aurora became the servicer of Mr. Jara’s loan well before he defaulted on it. RJN, ECF No. 62, Ex. 4. The notice states: “As you were previously notified by Pacific Community Mortgage, the servicing of your loan, that is, the right to collect payment from you, is being transferred to Aurora Loan Services (“Aurora”) effective March 01, 2006. The assignment, sale of transfer of the servicing of your loan does not affect any terms or conditions of your loans instruments .... ” Id. Mr. Jara did not default on his loan until 2008. Fourth AC, ECF No. 72 at ¶ 7; RJN, ECF No. 62, Ex. 10 (notice of default). Because Aurora became servicer to Mr. Jara’s loan before he defaulted, Aurora cannot be a “debt collector” for purposes of the FDCPA. 15 U.S.C. § 1692a(6)(F)(iii); see Perry, 756 F.2d at 1208 (a debt collector does not include the consumer’s mortgage servicing company, as long as the debt was not in default at the time it was assigned); Distor v. U.S. Bank, N.A., No. C 09-02086 SI, 2009 WL 3429700, at *5 (N.D.Cal. Oct. 22, 2009) (“Defendant GMAC was the loan servicer before the mortgage went into default, and the FDCPA excludes persons attempting to collect a debt that was not in default at the time it was obtained.”). Accordingly, because further attempts to allege a FDCPA claim against Aurora would be futile, Mr. Jara’s FDCPA claim is DISMISSED WITH PREJUDICE. See Lopez, 203 F.3d at 1127. C. Quiet Title Mr. Jara previously alleged a claim for quiet title. TAC, ECF" }, { "docid": "10804957", "title": "", "text": "itself out of either category would mean that the intended protection of the FDCPA is unavailable. Both the statutory language and legislative history of the FDCPA establish that such an entity is either a creditor or a debt collector and its collection activities are covered under the FDCPA accordingly. The distinction between a creditor and a debt collector lies precisely in the language of § 1692a(6)(F)(iii). For an entity that did not originate the debt in question but acquired it and attempts to collect on it, that entity is either a creditor or a debt collector depending on the default status of the debt at the time it was acquired. The same is true of a loan servicer, which can either stand in the shoes of a creditor or become a debt collector, depending on whether the debt was assigned for servicing before the default or alleged default occurred. Wadlington v. Credit Acceptance Corp., 76 F.3d 103, 106-8 (6th Cir. 1996); see also Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir.1985). This interpretation of the Act is supported by Congress’s intent in passing it. This bill also protects people who do not owe money at all. In the collector’s zeal, collection efforts are often aimed at the wrong person either because of mistaken identity or mistaken facts. This bill will make collectors behave responsibly towards people with whom they deal. H.R.Rep. No. 131, at 8 (emphasis added); see also S. Rep. 95-382, 95th Cong. 1st Session 4, reprinted in 1977 U.S.C.C.A.N. 1695, 1698 (1977) (“[T]he committee does not intend the definition [of debt collector] to cover ... mortgage service companies and others who service outstanding debts for others, so long as the debts were not in default when taken for servicing[.]”). Thus, we do not accept Defendants’ argument that, even if they are not creditors under the Act, neither are they debt collectors. It would thwart the purpose of the Act to find that a non-originating debt holder is neither a creditor nor a debt collector based on that defendant’s adoption of contradictory factual positions. Defendants may" }, { "docid": "5087744", "title": "", "text": "Jara’s claim: He does not, and cannot, sufficiently allege that Aurora was a “debt collector.” To be held liable for violation of the FDCPA, a defendant must fall within the FDCPA’s definition of “debt collector.” See Heintz v. Jenkins, 514 U.S. 291, 294, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995); see also Romine v. Diversified Collection Servs., 155 F.3d 1142, 1146 (9th Cir.1998). The court previously explained that a “debt collector” is defined, in relevant part, as: any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.... [T]he term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts. For the purpose of section 1692f(6) of this title, such term also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests. 15 U.S.C. § 1692a(6). “The term does not include,” however, “any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity ... concerns a debt which was originated by such person [or] ... concerns a debt which was not in default at the time it was obtained by such person.” 15 U.S.C. § 1692a(6)(F)(iii) & (iii). Indeed, “[t]he legislative history of section 1692a(6) indicates conclusively that a debt collector does not include the consumer’s creditors, a mortgage servicing company, or an assignee of a debt, as long as the debt was not in default at the time it was assigned.” Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir.1985) (citing S.Rep. No. 95-382, 95th Cong., 1st Sess. 3, reprinted in 1977 U.S.Code Cong. & Ad. News 1695,1698; Kizer v. Finance America Credit Corp.," }, { "docid": "5087743", "title": "", "text": "the unidentified true owner retained Aurora to engage in debt collection activities” and that “[d]ebt collection of delinquent loans is a principal part of the business of Aurora.” Fourth AC, ECF No. 72, ¶ 14. He goes on to allege that he and Aurora entered into a loan modification and that he was current on his payments (as modified by the agreement) when Aurora instructed Cal Western to begin foreclosure proceedings. Id., ¶¶ 15-16. Mr. Jara alleges that Aurora “instructed Cal Western not to provide [Mr.] Jara [with] the Debt Validation Notice required by the FDCPA.” Id., ¶ 16. He further alleges that Aurora engaged in false, deceptive, and misleading representations by preparing “forbearance and modification agreements” (which he alleges were abusive and misleading) and presenting them to him “with the express oral representation [that he] would avoid a nonjudicial trustee sale and foreclosure if he complied with [their terms],” when, in reality, Aurora would go on to instruct Cal Western to proceed with foreclosure anyway. Id. But there is a fatal problem with Mr. Jara’s claim: He does not, and cannot, sufficiently allege that Aurora was a “debt collector.” To be held liable for violation of the FDCPA, a defendant must fall within the FDCPA’s definition of “debt collector.” See Heintz v. Jenkins, 514 U.S. 291, 294, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995); see also Romine v. Diversified Collection Servs., 155 F.3d 1142, 1146 (9th Cir.1998). The court previously explained that a “debt collector” is defined, in relevant part, as: any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.... [T]he term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts. For the purpose of section 1692f(6) of this title, such term also includes" }, { "docid": "5087747", "title": "", "text": "not default on his loan until 2008. Fourth AC, ECF No. 72 at ¶ 7; RJN, ECF No. 62, Ex. 10 (notice of default). Because Aurora became servicer to Mr. Jara’s loan before he defaulted, Aurora cannot be a “debt collector” for purposes of the FDCPA. 15 U.S.C. § 1692a(6)(F)(iii); see Perry, 756 F.2d at 1208 (a debt collector does not include the consumer’s mortgage servicing company, as long as the debt was not in default at the time it was assigned); Distor v. U.S. Bank, N.A., No. C 09-02086 SI, 2009 WL 3429700, at *5 (N.D.Cal. Oct. 22, 2009) (“Defendant GMAC was the loan servicer before the mortgage went into default, and the FDCPA excludes persons attempting to collect a debt that was not in default at the time it was obtained.”). Accordingly, because further attempts to allege a FDCPA claim against Aurora would be futile, Mr. Jara’s FDCPA claim is DISMISSED WITH PREJUDICE. See Lopez, 203 F.3d at 1127. C. Quiet Title Mr. Jara previously alleged a claim for quiet title. TAC, ECF No. 49, ¶ 26-30. In its 12/14/2011 Order, the court explained: A requirement of an action to quiet title is an allegation that plaintiffs “are the rightful owners of the property, i.e., that they have satisfied their obligations under the deed of trust.” Kelley v. Mortgage Elec. Registration Sys., 642 F.Supp.2d 1048, 1057 (N.D.Cal.2009). “Thus, it is dispositive as to this claim that, under California law, a borrower may not assert ‘quiet title’ against a mortgagee without first paying the outstanding debt on the property.” Rosenfeld v. JPMorgan Chase Bank, N.A., 732 F.Supp.2d 952, 975 (N.D.Cal.2010) (citing Miller v. Provost, 26 Cal.App.4th 1703, 1707, 33 Cal.Rptr.2d 288 (1994) (“a mortgagor of real property cannot, without paying his debt, quiet his title against the mortgagee”) (citation omitted)). 12/14/2011 Order, ECF No. 68 at 18. Because Mr. Jara failed to allege any ability or willingness to tender the amount owed, the court dismissed his claim. Id. Mr. Jara again alleged a quiet title claim in his Fourth Amended Complaint, and he again failed to allege a valid" }, { "docid": "5087763", "title": "", "text": "has not alleged any facts suggesting he complied with these requirements. . To state a claim under the FDCPA, \"a plaintiff must allege facts that establish the following: (1) the plaintiff has been the object of collection activity arising from a consumer debt; (2) the defendant attempting to collect the debt qualifies as a 'debt collector’ under the FDCPA; and (3) the defendant has engaged in a prohibited act or has failed to perform a requirement imposed by the FDCPA.” Adesokan v. U.S. Bank, N.A., No. 11-cv-01236-LJO-SKO, 2011 WL 5241178, at *4 (E.D.Cal. Oct. 31, 2011) (citing Frazier v. Absolute Collection Serv., Inc., 767 F.Supp.2d 1354, 1363 (N.D.Ga.2011)). . In general, the court's inquiry on a motion to dismiss is limited to the allegations in the complaint, which are accepted as true and construed in the light most favorable to the plaintiff. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001). However, the court need not accept as true allegations contradicting documents that are referenced in the complaint or that are properly subject to judicial notice. Id. . To the extent that Mr. Jara attempts to rely upon Cal Western’s foreclosure-related acts to allege a FDCPA claim against Aurora, his claim also fails because, as described above, the court dismissed with prejudice Mr. Jara’s FDCPA claim against Cal Western based on those acts. . Because Mr. Jara's inability to allege that Aurora is a \"debt collector” is fatal to his FDCPA claim, the court need not address the parties' arguments about whether Aurora’s conduct, even if it could be a \"debt collector,” constituted debt collection activities. See MTD, ECF No. 74-1 at 24-25; Opposition, ECF No. 78 at 3-6; Reply, ECF No. 84 at 4. The court will say, however, that Mr. Jara’s attempt to use the Consumer Financial Protection Bureau’s amicus brief in Birster v. American Home Mortgage Servicing, Inc., No. 11-13574-G (11th Cir. Dec. 22, 2011) is misplaced because the brief discusses claims against a loan servicer who began servicing the plaintiffs’ loan after default occurred, thereby avoiding the \"debt collector” definition problem discussed above. That" }, { "docid": "5087737", "title": "", "text": "rates of interest, and the borrower’s rights.” Beach v. Ocwen Fed. Bank, 523 U.S. 410, 412, 118 S.Ct. 1408, 140 L.Ed.2d 566 (1998) (citing 15 U.S.C. §§ 1631, 1632, 1635 & 1638). Mr. Jara alleges that Aurora failed to notify him of the “the identity of the actual owner” of his loans in violation of 15 U.S.C. § 1641(g). Fourth AC, ECF No. 72, ¶ 11. Subsection (g), which was added to § 1641 as part of the Helping Families Save Their Homes Act and which became effective on May 19, 2009, provides in relevant part: In addition to other disclosures required by this subchapter, not later than 30 days after the date on which a mortgage loan is sold or otherwise transferred or assigned to a third party, the creditor that is the new owner or assignee of the debt shall notify the borrower in writing of such transfer, including— (A) the identity, address, telephone number of the new creditor; (B) the date of transfer; (C) how to reach an agent or party having authority to act on behalf of the new creditor; (D) the location of the place where transfer of ownership of the debt is recorded; and (E) any other relevant information regarding the new creditor. 15 U.S.C. § 1641(g)(1) (emphasis added). This TILA claim, which is new to Mr. Jara’s. Fourth Amended Complaint, fails. 15 U.S.C. § 1641(g) only applies to creditors who are new owners or assignees of mortgage loan, and Mr. Jara does not allege that Aurora is a new owner or assignee of his loan. He states that, although he believes Pacific transferred ownership of his loan at some point in time, he does not know to whom it was transferred. Fourth AC, ECF No. 72, ¶¶ 2, 10, 12. In fact, he uses his Fourth Amended Complaint to ask Aurora who the owner is. Id., ¶ 10, 12. Moreover, publicly-filed documents submitted by Defendants suggest that Aurora became a servicer, not an owner or assignee, of Mr. Jara’s loan. See RJN, ECF No. 62, Ex. 4. Without an allegation that Aurora, as" }, { "docid": "18071766", "title": "", "text": "WL 3154518, at *5 (D.Nev. Aug. 9, 2010) (NDTPA “does not regulate debt collection”). Because NDTPA generally does not apply in the real estate context, and does not extend to loan servicing or debt collection, it is inapplicable to the instant action. Plaintiffs’ NDTPA claim fails. 4. Plaintiffs Properly Allege a Violation of the FDCPA Only As To Alhassid Nationstar maintains that Plaintiffs claim for violation of the FDCPA should be dismissed because Nationstar is not a “debt collector” regulated by the statute. To establish a claim under the FDCPA, a plaintiff must allege that “(1) the plaintiff has been the object of collection activity arising from consumer debt, (2) the defendant is a debt collector as defined by the FDCPA, and (3) the defendant has engaged in an act or omission prohibited by the FDCPA.” Kaplan v. Assetcare, Inc., 88 F.Supp.2d 1355, 1360-61 (S.D.Fla.2000). “The FDCPA applies only to debt collectors.” Locke v. Wells Fargo Home Mortgage, 2010 WL 4941456, at *2 (S.D.Fla. Nov. 30, 2010). For FDCPA purposes, a “debt collector” is defined to mean a person who regularly collects debts owed to another person. 15 U.S.C. § 1692a(6). But, a “debt collector” does not include “any person collecting or attempting to collect any debt due or asserted to be owed or due another to the extent such activity ... concerns a debt which not in default at the time it was obtained by such person.” 15 U.S.C. § 1692a(6)(F)(iii). The FDCPA thus provides an exception for loan services that acquire loans that are not in default at the time of acquisition. See Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir.1985) (FDCPA excepts loan servicers from its definition of “debt collector” “as long as the debt was not in default at the time it was assigned”); Reese v. JPMorgan Chase & Co., 686 F.Supp.2d 1291, 1307 (S.D.Fla.2009) (“Under the FDCPA ... an assignee of a debt [is] not considered [a] ‘debt collector,’ as long as the debt was not in default at the time it was assigned.”); Bentley v. Bank of Am., N.A., 773 F.Supp.2d" }, { "docid": "22302901", "title": "", "text": "the amount of 4% of the delinquent monthly installment should be characterized as interest for the purpose of determining the total interest for which the Perrys were liable. Since late charges of this nature do not involve the “use or forbearance or detention of money”, see Tex. Rev.Civ.Stat.Ann. art. 5069-1.01 (Vernon 1971), and instead are merely bona fide fees paid to third parties for servicing the late payments, they are not properly characterized as “interest”. See Rimco Enterprises, Inc. v. Texas Electric Service Co., 599 S.W.2d 362, 366 (Tex.Civ.App.—Port Worth 1980, writ ref’d n.r.e.). C. Federal Fair Debt Collection Practices Act and Texas Debt Collection Act Claims The Perrys claim that the trial court erred in granting Hammond’s and FNMA’s motions for directed verdicts on their claims under the Federal Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 (1982), and the Texas Debt Collection Act (TDCA), Tex.Rev.Civ.Stat.Ann. arts. 5069-11.01 to 5069-11.11 (Vernon Supp.1985). The FDCPA makes it unlawful for debt collectors to use abusive tactics while collecting debts for others. The FDCPA defines a debt collector as “any person ... who regularly collects or attempts to collect ... debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). The term “debt collector” does not include: [A]ny person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity ... (ii) concerns a debt which was originated by such person [or] (iii) concerns a debt which was not in default at the time it was obtained by such person. 15 U.S.C. § 1692a(6)(G). The legislative history of section 1692a(6) indicates conclusively that a debt collector does not include the consumer’s creditors, a mortgage servicing company, or an assignee of a debt, as long as the debt was not in default at the time it was assigned. See S.Rep. No. 95-382, 95th Cong., 1st Sess. 3, reprinted in 1977 U.S.Code Cong. & Ad.News 1695, 1698. See also Kizer v. Finance America Credit Corp., 454 F.Supp. 937, 939 (N.D. Miss.1978). In this case," }, { "docid": "8525930", "title": "", "text": "or attempts to collect, directly or indirectly, debts owed of due or asserted to be owed or due another.... The term does not include— (F) any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity ... (iii) concerns a debt which was not in default at the time it was obtained by such person. 15 U.S.C. § 1692a(6). “The legislative his-. tory of § 1692a(6) indicates conclusively that a debt collector does not include the consumer’s creditors, a mortgage servicing company, or an assignee of a debt, as long as the debt was not in default at the time it was assigned.” Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir.1985). As a mortgage servicing company, HSBC would not qualify as a debt collector if it obtained the note from Crevecor Mortgage, Inc. while it was not in default. The Second Amended Complaint states “[o]n information and belief, Defendant HSBC acquired the loan and/or the servicing rights on or about July 10, 2009. Upon information and belief, the loan was delinquent when HSBC acquired the loan and/or the servicing rights.” (ECF No. 78 at 6). HSBC has provided a declaration of Dana J. St. Clair-Hougham, a Vice President and Assistant Secretary of HSBC, stating that HSBC purchased the note and deed of trust on March 31, 2005. (ECF No. 79-3). The fact is disputed. Stokes v. Gann, 498 F.3d 483, 484 (5th Cir.2007) (per curiam). At this stage, particularly in light of HSBC’s Answer (as set forth in the next paragraph), the Court must assume that the allegations in the Second Amended Complaint are true. Accordingly, HSBC must be considered a debt collector under the FDCPA. HSBC admitted in its Original Answer to Plaintiffs’ Complaint that it acquired the loan while it was delinquent. (ECF No. 23 at ¶ 23). “Factual assertions in pleadings ... are considered to be judicial admissions conclusively binding on the party who made them.” White v. ARCO/Polymers, Inc., 720 F.2d 1391, 1396 (5th Cir.1983). Facts that are admitted" }, { "docid": "5087730", "title": "", "text": "5; Request for Judicial Notice (“RJN”), ECF No. 62, Ex. 3. To fund the purchase, he borrowed $865,000 from Pacific Community Mortgage, Inc. (“Pacific”), which packaged the loan as two separate notes. Fourth AC, ECF No. 72, ¶¶ 5, 6; RJN, ECF No. 62, Exs. 1, 2. Pacific subsequently transferred its servicing rights on the first note to Aurora. Fourth AC, ECF No. 49, ¶¶ 2, 5; RJN, ECF No. 62, Ex. 4. In 2008, Mr. Jara “sustained substantial personal problems that qualified as a hardship under the [Home Affordable Modification Program] requiring modification of the terms of the subject obligation and security instruments.” Fourth AC, ECF No. 72, ¶ 7; see also RJN, ECF No. 62, Ex. 10 (notice of default). Thereafter, Mr. Jara entered into agreements to modify the terms of his loan. Fourth AC, ECF No. 72, ¶ 15. Mr. Jara alleges that he was current on his obligations under the agreements when California Western Re-conveyance Corporation (“Cal Western”) recorded a notice of default on the property. Fourth AC, ECF No. 49, ¶¶ 9, 15-16; RJN, Ex. 10 (notice of default). On August 25, 2010, Cal Western conducted a trustee’s sale at which Aurora purchased the property. RJN, ECF No. 62, Ex. 13 (trustee’s deed upon sale). B. Procedural History Mr. Jara filed the present lawsuit against Aurora, MERS, and Cal Western in San Mateo County Superior Court on November 10, 2010. Notice of Removal, ECF No. 1, Ex. 1 at 5-36 (“Complaint”). Thirteen days later, on November 23, 2010, he filed a First Amended Complaint as a matter of right. Notice of Removal, ECF No. 1, Ex. 2 at 40-49 (“FAC”). The First Amended Complaint added attorneys’ fees and costs to the relief previously sought in the original complaint. Compare Notice of Removal, ECF No. 1, Ex. 1 at 13 with Notice of Removal, ECF No. 1, Ex. 2 at 48. On January 28, 2011, Aurora and MERS removed the case to this court. Notice of Removal, ECF No. 1 at 1-4. The court denied Mr. Jara’s motion to remand on June 6, 2011. 06/06/2011 Order," }, { "docid": "8525929", "title": "", "text": "reasonable attorney’s fees, and statutory “additional” damages. 15 U.S.C. § 1692k(a). Specifically, the Trevinos allege that Defendants violated 15 U.S.C. § 1692e(2) by misrepresenting the character and amount of the debt and § 1692(e)(5) by taking an action which could not legally be taken, i.e., filing a proof of claim for monies not owed. They allege further that Defendants violated § 1692f(l) by attempting to collect debts not authorized by the Note or Deed of Trust. Finally, the Trevinos allege that U.S. Bank and Caliber violated 15 U.S.C. § 1692e(12) by representing to the court that they were innocent purchasers for value. a. HSBC Is a Debt Collector Under the FDCPA HSBC argues that the Trevino’s FDCPA claims must fail because it cannot qualify as a debt collector within the meaning of the statute. The statute defines the term debt collector, in part, as: [A]ny person who uses any instrumentality of interstate commerce or the mails in any in any business the principal purpose of which is the collection of debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed of due or asserted to be owed or due another.... The term does not include— (F) any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity ... (iii) concerns a debt which was not in default at the time it was obtained by such person. 15 U.S.C. § 1692a(6). “The legislative his-. tory of § 1692a(6) indicates conclusively that a debt collector does not include the consumer’s creditors, a mortgage servicing company, or an assignee of a debt, as long as the debt was not in default at the time it was assigned.” Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir.1985). As a mortgage servicing company, HSBC would not qualify as a debt collector if it obtained the note from Crevecor Mortgage, Inc. while it was not in default. The Second Amended Complaint states “[o]n information and belief, Defendant HSBC acquired the loan and/or the servicing rights on" }, { "docid": "5087741", "title": "", "text": "owner of the obligation and security instruments, or merely the servicer of agent for unspecified and unidentified true owners,” Fourth AC, ECF No. 74-1, ¶2, Mr. Jara never alleges that he sent any written request, as required by the statute, to Aurora to obtain any of the information he lacks, nor does he even address this problem — pointed out by Defendants in their motion to dismiss — in his opposition. See generally Fourth AC, ECF No. 74-1; Opposition, ECF No. 78. As the court has given Mr. Jara opportunities to allege a viable TILA claim and, despite the court’s guidance, he has yet to do so, his TILA claim is DISMISSED WITH PREJUDICE. See Ferdik, 963 F.2d at 1261. B. Federal Debt Collection Practices Act In the first three iterations of his complaint, Mr. Jara brought a claim for violation of the FDCPA against Cal Western, the company that filed the foreclosure-related documents and conducted the trustee’s sale. See Notice of Removal, ECF No. 1, Ex. 1 at 11; id. at 46; TAC, ECF No. 49, ¶¶ 13-18. Although he did not specify it, his claim against Cal Western was for violation of 15 U.S.C. § 1692g(a), which provides that within five days of making initial contact with a debtor “in connection with the collection of any debt,” a debt collector must send the debtor a written notice containing the amount of the debt, the name of the creditor, the time period in which the validity of the debt may be challenged, and instructions explaining how the debtor may obtain further evidence of the debt and information about the creditor. Because Mr. Jara did not sufficiently allege that Cal Western was a “debt collector” and could not sufficiently allege that Cal Western engaged in debt collection activity, the court dismissed his claim under 15 U.S.C. § 1692g(a) with prejudice. 12/14/2011 Order, ECF No. 68 at 5-9. In his Fourth Amended Complaint, Mr. Jara, for the first time, alleges a FDCPA against Aurora. Fourth AC, ECF No. 72, ¶¶ 13-18. Mr. Jara alleges that “[a]fter this loan went into default," } ]

[ { "docid": "12790465", "title": "", "text": "could be reviewed. The first act of Congress which authorized a criminal ease to be brought from the Circuit Court of the United States to this court, except upon a certificate of division of opinion, was the act of February 6, 1889, c. 113, § 6, 25 Stat. 655, by which it was enacted that “in all cases of conviction” of a “capital crime in any court of the United States,” the final judgment “against the respondent” might, on his application, be reexamined, reversed or affirmed by this court on writ of error. Up to that time this court had no general authority to review on error or appeal the judgments of the Circuit Courts of the United States in cases within their criminal jurisdiction. United States v. Sanges, 144 U. S. 310, 319; Cross v. United States, 145 U. S. 571, 574. By section four of the judiciary act of March 3,1891, c. 517, 26 Stat. 826, it was provided that “ the review, by appeal, by writ of error or otherwise, from the existing Circuit Courts shall be had only in the Supreme Court of the United States, or in the Circuit Courts of Appeals hereby established, according to the provisions of this act regulating the same.” By section five appeals or writs of error might be taken from the Circuit Court directly to this court in certain enumerated classes of cases, including “ cases of conviction of a capital or otherwise infamous crime.” And bv section six the judgments or decrees of the Circuit Courts of Appeals were made final “ in all cases arising under the criminal laws” and in certain other classes of cases, unless questions were certified to this court, or the whole case ordered up by writ of certiorari, as therein provided. American Construction Co. v. Jacksonville Railway Co., 148 U. S. 372, 380. Thus appellate jurisdiction was given in all criminal cases by writ of error either from this court or from the Circuit Courts of Appeals, and in all civil cases by appeal or error without regard to the amount in" } ]

[ { "docid": "18934968", "title": "", "text": "remarked Mr. Justice Miller in Ex parte Bigelow, 113 U. S. 328, 329, “ The act of Congress has made the judgment of that court conclusive, as it had a right to do, and the defendant having one review of his trial and judgment has no special reason to complain.” ■ By sections 651 and 697 of the Bevised Statutes provision was made for a review of questions arising in criminal cases under certificates of division of opinion, and this was so provided as early as 1802. Act of April 29, 1802, § 6, 2 Stat. 156, 159, c. 31. But this provision has never been supposed to refer to the courts of the District of Columbia. By section five of the Judiciary Act of March 3. 1891. 26 Stat. 826, c. 517, it is provided that appeals and writs of error may be taken “from the District Courts or from the existing Circuit Courts directly to this court in cases of conviction of a capital or otherwise infamous crime; ” and we have been constrained to hold that the judgments of the Supreme Court of the District of Columbia in criminal cases are not embraced by the provisions of that section. In re Heath, Petitioner, 144 U. S. 92. Unless, therefore, as is indeed not disputed, this writ of error comes within the act of Congress of February 6, 1889, entitled “ An act to abolish Circuit Court powers •of certain District Courts of the United States and to provide for writs of error in capital cases and for other purposes,” 25 Stat. 655, c. 113, it cannot be maintained.- This act contains seven sections, of which the first five relate, in substance, to the establishment of Circuit Courts for the Eastern District of Arkansas, the Northern District of Mississippi, and the Western District of South Carolina, and the withdrawal of' Circuit Court powers from certain District Courts. The seventh provides when the act shall take effect. Section six' is as follows: “ That' hereafter in all cases of conviction of crime the punishment of which provided by law" }, { "docid": "15772829", "title": "", "text": "writs of error might be taken from the District and Circuit Courts directly to this court in certain enumerated classes of cases, among which were “cases of conviction of a capital or otherwise infamous crime.” By amendment the words “or otherwise infamous” were stricken out, and it was declared that cases of convictions for an infamous crime not capital might be carried to the Circuit Courts of Appeals. 29 Stat. 492, c. 68. By section 6, the judgments of the Circuit Courts of Appeals are made final in cases arising under the criminal laws. And section 15 provides: “That the Circuit Court of Appeals in cases in which the judgments of the Circuit Courts of Appeal are made final by this act shall have the same appellate jurisdiction, by writ of error or appeal, to review the judgments, orders, and decrees of the Supreme Courts of the several Territories as by this act they may have to review the judgments, orders, and decrees of the. District Court and Circuit Courts; and for that purpose the several Territories shall, ■by orders of the Supreme Court, to be made from time to time, be assigned to particular circuits.” But the case before us is a capital case and not included in the criminal cases to which the jurisdiction of the Circuit Courts of Appeals extends. It is suggested that, as it follows that if this court has no jurisdiction, convictions for crimes not capital are reviewable on a second appeal, while convictions for a capital crime are not, this involves an absurdity, hardship or injustice, presumably not intended. We held, however, in Folsom v. United States, 160 U. S. 121, that the intention was plain and that the statute must be taken as it read. There remains the act of February 6, 1889, 25 Stat. 655, e. 113, by the sixth section of which it was provided that “in all cases of conviction of crime, the punishment of which provided by law is death, tried before any court of the United States, the final judgment of such court against the respondent shall," }, { "docid": "3483920", "title": "", "text": "one established by the Sentencing Reform Act of 1984 — cannot withstand the definitive and consistent statements of the Supreme Court that there is simply no constitutional right to an appeal. See, e.g., Martinez, 528 U.S. at 160, 120 S.Ct. at 690; Abney, 431 U.S. at 656, 97 S.Ct. at 2038; Reetz, 188 U.S. at 508, 23 S.Ct. at 392; McKane, 153 U.S. at 687-88, 14 S.Ct. at 915. “The right of appeal, as we presently know it in criminal cases, is purely a creature of statute.” Abney, 431 U.S. at 656, 97 S.Ct. at 2038. For the first century of this Nation’s existence, criminal defendants had no right to appeal at all. Id. In 1889, Congress provided that in all cases in which a defendant is sentenced to death, the Supreme Court \"shall, upon the application of the respondent, be reexamined, reversed, or affirmed by the Supreme Court of the United States upon a writ of error.” Act of Feb. 6, 1889, § 6, 25 Stat. 655, 656. Then, in 1911, Congress granted the courts of appeals the authority to review criminal cases. See Act of Mar. 3 1911, § 128, 36 Stat. 1087, 1133-34. Today, the right to appeal a conviction is enshrined in 28 U.S.C. § 1291; and the right to appeal a sentence is provided by 18 U.S.C. § 3742. Both sections require that an appeal will not lie until the district court has entered a final decision. Neither mandates that we review a provisional decision. The majority's concern about the time Muz-io has spent in custody pending appeal is policy-driven, nothing more. No constitutional provision guarantees a right to an appeal, let alone a speedy right to appeal. Congress has not, in limiting our jurisdiction to final decisions, created an exception for appellants who happen to be in federal custody. . On the effective date of the Parole Commission and Reorganization Act of 1976, May 14, 1976, the U.S. Board of Parole became the U.S. Parole Commission. Under the Comprehensive Crime Control Act of 1984, the Parole Commission retained jurisdiction over defendants who committed their" }, { "docid": "12756115", "title": "", "text": "it was held in McAllister v. United States, 141 U. S. 171, 179, that “ the District Court for Alaska was invested with the powers of a District Court and a Circuit Court of the United States, as well as with general jurisdiction to enforce in Alaska the laws of Oregon, so far as they were applicable and were not inconsistent with the act and the Constitution and laws of the United States.” See also In re Cooper, 113 U. S. 172, 191. The act of March 3, 1891, c. 517, created in each circuit a Circuit Court of Appeals. 26 Stat. 826. The fourth section provides: “ That no appeal, whether by writ of error or otherwise, shall hereafter be taken or allowed from any District Court to the existing Circuit Courts, and no appellate jurisdiction shall hereafter be exercised or allowed by said existing Circuit Courts, but all appeals by writ of error or otherwise from said District Courts shall only be subject to review in the Supreme Court of the United States or in the Circuit Court of Appeals hereby established, as is hereinafter provided, and the review, by appeal, by writ of error, or otherwise, from the existing Circuit Courts shall be had only in the Supreme Court of the United States or in the Circuit Courts of Appeals hereby established according to the provisions of this act regulating the same;” the fifth section, that “appeals or writs of error may be taken from the District Courts or from the existing Circuits Courts direct to the Supreme Court” in certain enumerated cases; the sixth section, “that the Circuit Courts of Appeals established by this act shall exercise appellate jurisdiction to review by appeal or by writ of error final decision in the District Court and the existing Circuit Courts in all cases other than those provided for in the preceding section of this act, unless otherwise provided by law.” The fifteenth section, we have seen, gives the Circuit Courts of Appeals, in eases in which their judgments are final, the same jurisdiction to review the judgments" }, { "docid": "22399214", "title": "", "text": "to proceed -with the trial of the cause upon the merits: to all of which the defendant excepted, tendering his bill ■of exceptions, and asking that the same be allowed and certified, which was done by the judge of said court. He then sued out a writ of error from this court. The writ of error is taken under the act of March 3, 1891, 26 Stat. 826, c. 517, wmch, as we have decided in In re Claasen, 140 U. S. 200, went immediately into effect on its •enactment. The 13th section of that act placed the United .States court in the Indian Territory on the same footing with regard to writs of error and appeals to this court as that occupied by the Ollcuit and District Courts of the United .States. Sec. 5 of the same act provides: “ That appeals or writs of error may be taken from the district courts or from the existing circuit courts direct to the ■Supreme Court in the following cases : In any ease in which the jurisdiction of the court is in issue ; in such cases the question of jurisdiction alone shall be cértified -to the Supreme -Court from the court below for decision.” Does this provision authorize an appeal or writ- of error to be taken to this court for review of, a question involving the jurisdiction of the court below, whenever it arises in the progress of a case pending therein; and does the taking of such appeal or writ of error operate to stay the further proceedings in the cause until the determination by this court of the jurisdictional question ? Or, in other words, ha§ this court jurisdiction to review the question before any final judgment in the cause ? The plaintiff in error contends that we have the jurisdiction to review such question, because (1) there is in the section ■above quoted no express requirement of finality of judgment; and (2) because there is a positive requirement that the question of jurisdiction shall alone be certified to the Supreme ■Court from the court below" }, { "docid": "22600980", "title": "", "text": "in Oakland, Asparagus and Cherries.” In tbe court below, petitioners urged that the decision of the district court in striking the pleas in abatement could not have been reviewed by the circuit court of appeals after final judgment by rea son of R. S. § 1011, which has been carried over in substance into 28 U. S. C. § 879. R.S. § 1011 provides: “There shall be no reversal in the Supreme Court or in a circuit court upon a writ of error, for error in ruling any plea in abatement, other than a plea to the jurisdiction of the court, or for any error in fact.” This provision was taken from § 22 of the Judiciary Act of 1789, 1 Stat. 73, 84, a section which was in terms applicable only to civil cases. Neither the Judiciary Act of 1789 nor the Revised Statutes made any provision for review of federal criminal cases on writ of error, although R. S. §§ 651 and 697 provided for certification to the Supreme Court of questions arising in criminal cases. Review on writ of error of criminal cases in the federal courts was first established by the Act of Mar. 3, 1879, 20 Stat. 354, authorizing review of district court decisions by circuit courts. By § 6 of the Act of February 6, 1889, 25 Stat. 655, 656, the Supreme Court was given appellate review of capital cases on writ of error, and §§ 5 and 6 of the Judiciary Act of 1891, 26 Stat. 826, 827-8, abolished the appellate powers of the circuit courts, enlarged the appellate criminal jurisdiction of the Supreme Court, and authorized review of criminal cases tried in the circuit and district courts, by the circuit courts of appeals on writ of error. None of these acts contains any provision maldng applicable to criminal cases reviewed on writ of error the limitations winch § 22 of the Judiciary Act of 1789 imposed on such review of civil cases. Although R. S. § 1011 is phrased in terms of general applicability, it was held in Buck Stove Co. v." }, { "docid": "22201854", "title": "", "text": "Any. doubt that may have been caused b}r tins repealing enactment, as to the power to review the judgment of a Circuit Court dismissing a suit for want of jurisdiction, was removed by the act of February 25, 1889, c. 236, 25 Stat. 693, entitled “An act to provide for writs of error or appeals to the Supreme Court of the United States in all cases involving the question of the jurisdiction of the courts below,” and which provided “ that in all cases where a final judgment or decree shall be rendered in a Circuit Court of the United States in which there shall have been a question involving the juris-' diction of the court, the party against whom the judgment or decree is rendered shall be entitled to an appeal or writ of error to the Supreme Court of the United States to review such judgment or decree without reference to the amount of the same; but in cases where the decree or judgment does not exceed the sum of five thousand dollars the Supreme Court shall not review any question raised upon the record except such question of jurisdiction; such writ of error or appeal shall be taken and allowed under the same provisions as apply to other writs of error or appeals. . . .” This act of February 25, 1889, was followed by the act of March 3,1891, c. 517, 26 Stat. 826, which provided, in its fifth section, “that appeals or writs of error may be taken from the District Courts or from the existing Circuit Courts direct to the Supreme Court in the following cases : In any case in which the jurisdiction of the court is in issue; in such cases the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision.” These provisions of the several statutes plainly disclose the intent of Congress that a party whose suit has been dismissed by a Circuit Court for want of jurisdiction shall have the right to have such judgment reviewed by this court. And we have" }, { "docid": "14537306", "title": "", "text": "that this Act did not grant the right of review by certiorari sought to be exercised. In the course of its opinion it reviewed the relevant statutory scene.. At the time of the passage of the Act of 1891, the only means by which a Supreme Court decision could be secured on a question of law arising in a non-capital case was by certificate of divi- ' sion among the judges of the Circuit Court, under sections 651 and 697 of the Revised Statutes. Parenthetically it may be added that we gather, of course, that a defendant was entitled to a writ of error, as set out in the Sanges case. In capital cases, defendants were given the right to Supreme Court review by writ of error in the Act of February 6, 1889, 25 Stat 656, c 113 § 6. The Act of 1891, involved in the Dickinson case, superseded existing statutory provisions as to certificates of division of opinion among judges. The Act of 1891 was itself superseded by the Act of March 3, 1911, e 231, 36 Stat 1087, 1157, known as section 240 of the Judicial Code, and forerunner of the present 28 USC § 1254(1). In United States v. Gulf Refining Co., 268 US 542, 69 L ed 1082, 45 S Ct 597, the Supreme Court held that certiorari on behalf of the United States would lie to review a Court of Appeals reversal of a criminal conviction. Thus the transition from the statutes in force at the time of the Sanges case was complete. It is interesting to note that the Court of Appeals had held that the District Court had erred in denying the defense motion for a directed verdict, concluding that the verdict was not supported by substantial evidence. On the merits, the Supreme Court affirmed the Court of Appeals. Manifestly, the Government’s right to certiorari to a Court of Appeals is not limited to pressing questions of Constitutional law. The following cases, selected at random, illustrate the consequences which may follow the Government’s appeal from a Court of Appeals reversal of" }, { "docid": "17125313", "title": "", "text": "Me. Chief Justice Fullee, after stating the case, delivered the opinion of the court. The offence denounced by section 5209 of the Hevised Statutes is punishable by imprisonment not less than five nor more than ten years, and is therefore an infamous crime. In re Claassen, 140 U. S. 200, and cases cited. The question then is whether the Circuit Court of Appeals for the Eighth Circuit has jurisdiction of a writ óf error to review the judgment and proceedings of the Supreme Cqurt of the Territory of New Mexico in the instance of a conviction of an infamous crime. By section five of the judiciary act of March 3, 1891, c. 517, 26.Stat. 826, it was provided that appeals or writs of error might be taken from the District Courts or from the Circuit Courts direct to the Supreme Court in six classes of cases, one of which classes was “ cases of conviction of a capital or otherwise infamous crime;” and by section six, that the Circuit Courts of Appeals should exercise appellate jurisdiction to review by appeal or writ of error final judgments of the District Courts and the Circuit Courts “in all cases other than those provided for in the preceding section of this act, unless otherwise provided by law. And the judgments or decrees-of the Circuit Courts of Appeals shall be final in all cases in which the jurisdiction is dependent entirely upon the opposite parties to the suit or controversy being aliens and citizens of the United States or citizens of 'different States; also in all cases arising under the patent laws, the revenue laws or under the criminal laws, and in admiralty cases.” In harmony with previous legislation, 25 Stat. 784, c. 323; 26 Stat. 81, c. 182, § 42, section thirteen of the act of March 3, 1891, provides : “ Appeals and writs of error may be taken and prosecuted from the decisions of the United States Court in the Indian Territory to the Supreme Court of the United States, or to the Circuit Court of Appeals in the Eighth Circuit," }, { "docid": "17686747", "title": "", "text": "Court. By the fifth section of the judiciary act of March 3, 1891, 26 Stat. 826, 828, c. 517, it was provided that appeals or writs of error might be taken directly to the Supreme Court from the District and Circuit Courts in six classes of cases therein enumerated, neither of which classes includes the pending case. By the sixth section the Circuit Courts of Appeals, established by the act, were to exercise appellate’ jurisdiction, to review by appeal or writ of error final decisions of the District ánd Circuit Courts in all cases other than those provided for in the fifth section, unless otherwise provided by .law, and the judgments or decrees of the Circuit Courts of Appeals were made final in all cases in which the jurisdiction was dependent entirely upon the opposite .parties to the suit being aliens arid citizens of theTTnited States, or citizens of different States; in all cases arising under the patentlaws; the revenue laws; the criminal laws; and in admiralty cases. The case at. bar falls under none of these heads. By the fifteenth section it was provided that the Circuit-Courts of Appeals in cases in which the judgments or decrees of those courts were made final by the act, should have the same appellate jurisdiction by writ of error or appeal to review the judgments, orders, and decrees of the Supreme Courts of the several Territories, as by the act they might have to review the judgments, orders, and decrees of the District and Cirpuit Courts. This section does not apply to this case because it is not one of the cases in which the judgments or decrees of the Circuit Courts of Appeals are made final by the act. By the fourteenth section, section 691 of the Revised Statutes, and section three of the act of February 16, 1875, 18 Stat. 315, c. 77, were expressly repealed, and also “ all acts and .parts of acts relating to appeals or writs of error inconsistent with the provisions for ^review by appeals or writs of error in thé preceding sections five and" }, { "docid": "12756114", "title": "", "text": "was given to the District Court. Further, that “ writs of error in criminal cases shall issue to the said District Court from the United States Circuit Court for the District of Oregon in the cases provided in chapter one hundred and seventy-six of the laws of eighteen hundred and seventy-nine; and the jurisdiction thereby conferred upon Circuit Courts is hereby given to the Circuit Court of Oregon. And the final judgments or decrees of said Circuit and District Court may be reviewed by the Supreme Court of the United States as in other cases.” 23 Stat. 24, 25, 26. By the act of March 3,1879, c. 176, referred to, the Circuit Courts for each judicial district Avere given jurisdiction “ of writs of error in all criminal cases tried before the District Court where the sentence is imprisonment, or where, if a fine only, the fine shall exceed the sura of three hundred dollars.” 20 Stat. 351, c. 176, § 1. Referring to these and the other provisions of the above act of 1881, it was held in McAllister v. United States, 141 U. S. 171, 179, that “ the District Court for Alaska was invested with the powers of a District Court and a Circuit Court of the United States, as well as with general jurisdiction to enforce in Alaska the laws of Oregon, so far as they were applicable and were not inconsistent with the act and the Constitution and laws of the United States.” See also In re Cooper, 113 U. S. 172, 191. The act of March 3, 1891, c. 517, created in each circuit a Circuit Court of Appeals. 26 Stat. 826. The fourth section provides: “ That no appeal, whether by writ of error or otherwise, shall hereafter be taken or allowed from any District Court to the existing Circuit Courts, and no appellate jurisdiction shall hereafter be exercised or allowed by said existing Circuit Courts, but all appeals by writ of error or otherwise from said District Courts shall only be subject to review in the Supreme Court of the United States" }, { "docid": "22403917", "title": "", "text": "shall have the same right of appeal that is given to the defendant, including the right to a bill of exceptions: Provided, That if on such appeal it shall be found that there was error in the rulings of the court during a trial, a verdict in favor of the defendant shall not be set aside.” D. C. Code, 1951, § 17-102: “Nothing contained in any Act of Congress shall be construed to empower the United States Court of Appeals for the District of Columbia to allow an appeal from any interlocutory order entered in any criminal action or proceeding or to entertain any such appeal heretofore or hereafter allowed or taken.” See also Cobbledick v. United States, 309 U. S. 323; Baltimore Contractors, Inc. v. Bodinger, 348 U. S. 176, 178-182. As to the development in state law of statutes in derogation of the common-law principle against appeal by the prosecution, see United States v. Sanges, 144 U. S. 310, 312-318; S. Rep. No. 5650, 59th Cong., 2d Sess.; H. R. Rep. No. 45, 77th Cong., 1st Sess. 2-3. See also Palko v. Connecticut, 302 U. S. 319. The Act of February 6, 1889, 25 Stat. 656, authorized direct review in the Supreme Court by writ of error “in all cases of conviction of crime the punishment of which provided by law is death, tried before any court of the United States . . . .\" Two years later the Circuit Courts of Appeals Act extended the jurisdiction for direct review to all “cases of conviction of a capital or otherwise infamous crime.” 26 Stat. 827. The burden upon this Court of hearing the large number of criminal cases led, in 1897, to transfer of the jurisdiction over convictions in noncapital cases to the Circuit Courts of Appeals. 29 Stat. 492. Section 238 of the Judicial Code completed the retrenchment in 1911 by eliminating direct review of capital cases. 36 Stat. 1157. See Frankfurter and Landis, The Business of the Supreme Court (1928), 109-113. Prior to the Acts of 1889 and 1891, there was no jurisdictional provision for appeal" }, { "docid": "22403918", "title": "", "text": "77th Cong., 1st Sess. 2-3. See also Palko v. Connecticut, 302 U. S. 319. The Act of February 6, 1889, 25 Stat. 656, authorized direct review in the Supreme Court by writ of error “in all cases of conviction of crime the punishment of which provided by law is death, tried before any court of the United States . . . .\" Two years later the Circuit Courts of Appeals Act extended the jurisdiction for direct review to all “cases of conviction of a capital or otherwise infamous crime.” 26 Stat. 827. The burden upon this Court of hearing the large number of criminal cases led, in 1897, to transfer of the jurisdiction over convictions in noncapital cases to the Circuit Courts of Appeals. 29 Stat. 492. Section 238 of the Judicial Code completed the retrenchment in 1911 by eliminating direct review of capital cases. 36 Stat. 1157. See Frankfurter and Landis, The Business of the Supreme Court (1928), 109-113. Prior to the Acts of 1889 and 1891, there was no jurisdictional provision for appeal or writ of error in criminal cases. United States v. More, 3 Cranch 159; see United States v. Sanges, 144 U. S. 310, 319. A question of law arising in a case tried by a Circuit Court of two judges, if they disagreed on the question, could be brought here upon a certificate of division of opinion, at the request of either party, and (except during one two-year period) without awaiting the final outcome of the ease in the Circuit Court. 2 Stat. 159; 17 Stat. 196; R. S. § 651. See United States v. Sanges, supra, at 320-321. The availability of this procedure for review, haphazard at best because dependent on disagreement between the two sitting judges, came to be very much diluted by the increasing frequency with which the Circuit Courts were conducted by a single judge. See Frankfurter and Landis, 79, 109. The Act of 1891 included as a category of cases subject to direct review by this Court, “any case in which the constitutionality of any law of the United States" }, { "docid": "22784651", "title": "", "text": "first act of Congress which authorized a criminal case. to be brought from a Circuit Court of the United States’ to this court, except upon a certificate of division of opinion, was the act of February 6, 1889, c. 113, § 6, by which ' it was enacted that “ in all cases of conviction ” of a capital crime in any court of the United States, the final judgment “ against the respondent” might, on his application, be reexamined, reversed or affirmed by this court on writ of error. 25 Stat. 656. The writ of error given by that act was thus clearly limited to the defendant; and the terms and effect of the act' of June 23, 1874, c. 469, § 3, above cited, concerning writs of error from this court to the Supreme Court of the Territory of Utah, as well as those of the act of March 3, 1879, c. 176, giving a writ of error from-the Circuit Court'of the United 'States to a District Court, were equally restricted. 18 Stat. 254; 20 Stat. 354. The provisions of the Judiciary Act of March 3, 1891, c. 517, material to be considered in this case, are those of § 5, by which appeals or writs of error may be taken from a Circuit Court directly to this court in certain classes of cases, among which are “ cases of conviction of a capital or otherwise infamous crime,” and “ any case that involves the construction or application of the Constitution of the United States; ” .and those of § 6, by which the Circuit Courts of Appeals established by this act have appellate jurisdiction to review, by appeal or writ of error, final decisions in the Districted Circuit Courts “ in all cases other than those provided for in the preceding section of this act, unless otherwise provided by law,” and the judgments or decrees of the Circuit Courts of Appeals are made final “ in all cases arising under the criminal laws ” and in certain other classes of cases, unless questions are certified to this" }, { "docid": "23119974", "title": "", "text": "was conferred in certain criminal cases upon Circuit Courts to review judgments of the District Courts, and it was provided in § 3 that “ in case of an affirmance of the judgment of the District Court, the Circuit Court shall pro ceed to pronounce final sentence and to award execution thereon; but if such judgment shall be reversed, the Circuit Court may proceed with the trial of said cause de novo or remand the same to the District Court for further proceedings.” The act of February 6, 1889, c. 113, 25 Stat. 655, which gave jurisdiction to this court by writ of error in all capital cases, tried before any court of the United States, provided that the final judgment of such court against the respondent, upon the application of the respondent, should be reexamined, reversed, or affirmed, upon writ of error, under such rules and' regulation as this court might prescribe. And the act further declared (§ 6): “When any such judgment shall be either reversed or affirmed the cause shall be remanded to the court from whence it came for further proceedings in accordance with the decision of the Supreme Court, and the court to which such cause is so remanded shall have power to cause such judgment of the Supreme Court to be carried into execution.” By the act of March 3, 1891, c. 517, 26 Stat. 826, jurisdiction was conferred upon this court “ in cases of conviction of a capital or otherwise infamous crime; ” and jurisdiction was conferred in other criminal cases upon the Circuit Courts of Appeal established by that act. With reference to the newly established courts in section 11 of the act it was provided as follows: “And all provisions of law now in force regulating the methods and system of review through appeals or writs of error shall regulate .the methods and system of appeals and writs of error provided for in this act in respect of the Circuit Courts of Appeals, including all provisions for bonds or other securities to be required and taken on such appeals and" }, { "docid": "14537305", "title": "", "text": "445, 12 S Ct 609, it was held that the Government had not brought itself within the applicable statute governing writs of error to the Supreme Court in criminal cases. That writ would lie, it was said, only at the instance of an aggrieved defendant. Reviewing the authorities disapproving prosecution appeals in criminal cases, the Court concluded that express statutory authority must be required for such a “serious and farreaehing . . . innovation in the criminal jurisprudence of the United States.” 144 US at 323. The Court did not suggest that such an “innovation” would suffer infirmities under the Fifth Amendment. The next important case in point is United States v. Dickinson, 213 US 92, 53 L ed 711, 29 S Ct 485. The question there was whether the United States could secure review by certiorari of' a Court of Appeals reversal of a conviction on a point of law.. The question turned on a construction of the terms of the Act of March 3, 1891, e 517, 26 Stat 826. The Court concluded that this Act did not grant the right of review by certiorari sought to be exercised. In the course of its opinion it reviewed the relevant statutory scene.. At the time of the passage of the Act of 1891, the only means by which a Supreme Court decision could be secured on a question of law arising in a non-capital case was by certificate of divi- ' sion among the judges of the Circuit Court, under sections 651 and 697 of the Revised Statutes. Parenthetically it may be added that we gather, of course, that a defendant was entitled to a writ of error, as set out in the Sanges case. In capital cases, defendants were given the right to Supreme Court review by writ of error in the Act of February 6, 1889, 25 Stat 656, c 113 § 6. The Act of 1891, involved in the Dickinson case, superseded existing statutory provisions as to certificates of division of opinion among judges. The Act of 1891 was itself superseded by the Act of March" }, { "docid": "22600981", "title": "", "text": "in criminal cases. Review on writ of error of criminal cases in the federal courts was first established by the Act of Mar. 3, 1879, 20 Stat. 354, authorizing review of district court decisions by circuit courts. By § 6 of the Act of February 6, 1889, 25 Stat. 655, 656, the Supreme Court was given appellate review of capital cases on writ of error, and §§ 5 and 6 of the Judiciary Act of 1891, 26 Stat. 826, 827-8, abolished the appellate powers of the circuit courts, enlarged the appellate criminal jurisdiction of the Supreme Court, and authorized review of criminal cases tried in the circuit and district courts, by the circuit courts of appeals on writ of error. None of these acts contains any provision maldng applicable to criminal cases reviewed on writ of error the limitations winch § 22 of the Judiciary Act of 1789 imposed on such review of civil cases. Although R. S. § 1011 is phrased in terms of general applicability, it was held in Buck Stove Co. v. Vickers, 226 U. S. 205, 213, that the rearrangement and rewording in the Revised Statutes of § 22 of the Judiciary Act of 1789 was not intended to change the meaning of that section, and that since § 22 had applied only to cases from federal courts, R. S. § 1011 did not prevent consideration of a ruling on a plea in abatement in a case on writ of error from a state court. We think that similar reasoning applies here to preclude the section’s application to criminal cases, to which in its original form it did not apply. In a large number of criminal cases, this Court and the circuit courts of appeals have reviewed on the merits decisions overruling or refusing to entertain pleas in abatement, although without reference to R. S § 1011. Agnew v. United States, 165 U. S. 36, 43-5; Bram v. United States, 168 U. S. 532, 566-8; Crowley v. United States, 194 U. S. 461, 468-74; Holt v. United States, 218 U. S. 245, 247-8; Hyde v. United" }, { "docid": "23221780", "title": "", "text": "Mr. Chief Justice Fuller delivered the opinion of the court. From Wiscart v. D'Auchy, 3 Dall. 321, to American Construction Co. v. Jacksonville &c. Railway Co., 148 U. S. 372, it has been held in an uninterrupted- series of decisions that •this court exercises appellate jurisdiction only in accordance with the acts of Congress upon that subject. By the Judiciary Act of March 3, 1891, it .is provided that the review by appeal, by writ of error, or otherwise, from existing Circuit Courts shall be had in this court, or in the Circuit Courts of Appeals thereby established, according to the provisions of the act regulating the same. The writ of error in this case was brought under section six of that statute, which provides that “judgments or decrees of the Circuit Courts of Appeals shall be final in all cases in which the jurisdiction is-dependent entirely upon the opposite parties to the suit or controversy being aliens and citizens of the . United States or citizens of different States,” and also that “ in all cases not hereinbefore, in this section, made final there shall be of right an appeal or writ of error or review of the case by the Supreme Court of the United States where the matter in controversy shall exceed one thousand dollars besides costs.”- 26 Stat. 826, 828, §-6, o. 517. If the judgment of the Circuit Court of Appeals for the Eighth Circuit was final, under .the section in question, then this writ of error must be dismissed. And in order to maintain that the decision of the Circuit Court of Appeals was not final, it must appear that the jurisdiction of the Circuit Court was -not dependent entirely upon the opposite parties being citizens of different States. Under the act of Márch 3, 1875, 18 Stat. 470, c. 137, Circuit Courts of the United States had original cognizance of all suits of a civil nature at'common law or in equity, -among others, where the matter in dispute exceeded, exclusive of costs, the sum or value of five hundred dollars, and arising under" }, { "docid": "22399310", "title": "", "text": "of the right of review by writ of error or appeal has not been that there was something in contempt proceedings which rendered them' not properly open to reviéw, but that they were of a criminal nature and no provision had been made for a review of criminal cases. This was true in England as here. ■ In that country, as is well known, there was no review of criminal cases by appeal or writ of error. Neither was there in our Federal system prior to the act of February 6, 1889, 25 Stat. 656; which provided for a writ of error from this court in capital cases. While the act creating the Court of Appeals, March 3, 1891, 26 Stat. 826, authorized a review of criminal cases, yet it limited the jurisdiction of this court to cases of a conviction for a capital or otherwise infamous crime — since limited to capital- cases — (29 Stat. 492,) and gave the right of review of all other criminal cases to the Circuit Courts of Appeal, 'andj of course, a proceeding in contempt cannot be .considered as an infamous crime. Habeas corpus is not treated as a writ of error, and while it may be issued by one court to inquire into the action of a court of coordinate jurisdiction, yet the inquiry is only whether the action of the court in imposing punishment was within its jurisdiction. Even in an appellate court the writ of habeas corpus is not .of itself the.equivalent of a writ of error, although when supplemented by certiorari, aa shown in the case of In re Watts and Sachs, supra, it may bring the whole case before the appellate court for review. The act of March 3, 1891, establishing Circuit Courts of Appeals must now be more fully considered. While its primary purpose was the relief of this court by the creation, of new appellate courts and the distribution between those courts and this of the , entire appellate .jurisdiction of the United States, The Paquette Habana, 175 U. S. 677, 681, and cases cited, yet" }, { "docid": "17686746", "title": "", "text": "rule eight, and section four of rule nine, of this court. It is true that the rules so provide, but as the purpose of the citation is notice so that the appellant may appear and be heard, any defect in that regard is pot jurisdictional and a new citation might be taken out if necessary, which, however, it is not, as the appellees have appeared generally. The second ground of the motion is, that by reason of the provisions of the judiciary act of March 3, 1891, the appeal was improperly allowed and canhot be maintained. By section 702 of the Revised Statutes and the act of March 3, 1885, 23 Stat. 443, c. 355, the final judgments and decrees of the Supreme Court of the Territories, where the matter in dispute, exclusive of costs, exceeded the sum of $5000, might be reviewed or reversed or affirmed in this court upon a writ of error or appeal in the same manner and under the same regulations as the final judgments and decrees of a Circuit. Court. By the fifth section of the judiciary act of March 3, 1891, 26 Stat. 826, 828, c. 517, it was provided that appeals or writs of error might be taken directly to the Supreme Court from the District and Circuit Courts in six classes of cases therein enumerated, neither of which classes includes the pending case. By the sixth section the Circuit Courts of Appeals, established by the act, were to exercise appellate’ jurisdiction, to review by appeal or writ of error final decisions of the District ánd Circuit Courts in all cases other than those provided for in the fifth section, unless otherwise provided by .law, and the judgments or decrees of the Circuit Courts of Appeals were made final in all cases in which the jurisdiction was dependent entirely upon the opposite .parties to the suit being aliens arid citizens of theTTnited States, or citizens of different States; in all cases arising under the patentlaws; the revenue laws; the criminal laws; and in admiralty cases. The case at. bar falls under none" } ]

[ { "docid": "22139875", "title": "", "text": "(1976); Cohen v. Beneficial Industrial Loan Corp, 337 U. S. 541, 545-547 (1949), the federal courts may exercise jurisdiction only over a final order of the Department. We therefore must determine whether this case meets that requirement. The Board’s order, which became the agency’s decision, merely established the amount of the deficiency owed by the States to the Federal Government, leaving for further “discussion” the method of repayment. See App. to Pet. for Cert. 88a, 90a. The possibility of further proceedings in the agency to determine the method of repayment does not, in our view, render the orders less than “final.” The situation here corresponds to the ordinary adjudication by a trial court that a plaintiff has a right to damages. Although the judgment in favor of the plaintiff is not self-executing and he may have to undertake further proceedings to collect the damages awarded, that possibility does not prevent appellate review of the decision, which is final. Our cases have interpreted pragmatically the requirement of administrative finality, focusing on whether judicial review at the time will disrupt the administrative process. See, e. g., FTC v. Standard Oil Co., 449 U. S. 232, 239 (1980); Port of Boston Marine Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U. S. 62, 71 (1970). Review of the agency’s decision at this time will not disrupt administrative proceedings any more than review of a trial court’s award of damages interferes with its processes. Indeed, full review of the judgment may expedite the collection process, since the States know their ultimate liability with certainty. The agency's determination of the deficiency here represented a definitive statement of its position, determining the rights and obligations of the parties, see Standard Oil Co., supra, at 239 (explaining Abbott Laboratories v. Gardner, 387 U. S. 136 (1967)); Port of Boston, supra, at 71; Pennsylvania R. Co. v. United States, 363 U. S. 202, 205 (1960). Therefore, the Court of Appeals properly took jurisdiction of the case, and we too have jurisdiction to address the merits. III Turning to the merits, the States first challenge the Secretary’s order by asserting that," } ]

[ { "docid": "17046345", "title": "", "text": "review procedures existed, the cause of action accrued when the agency action occurred.”). The appellants first contend that the district court erred because the Recruitment Notice did not constitute final agency action. The United States Supreme Court explained in Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 1168-69, 137 L.Ed.2d 281 (1997), that: [a]s a general matter, two conditions must be satisfied for agency action to be “final”: First, the action must mark the “consummation” of the agency’s deci-sionmaking process, Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113, 68 S.Ct. 431, 437, 92 L.Ed. 568 (1948) - it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which “rights or obligations have been determined,” or from which “legal consequences will flow,” Port of Boston Marine Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 209-10, 27 L.Ed.2d 203 (1970). See Domestic Secs., Inc. v. SEC, 333 F.3d 239, 246 (D.C.Cir.2003). The appellants contend that the Recruitment Notice fails on both counts. With regard to the first condition, they make two arguments. First, relying on Fourth Branch Assocs. (Mechanicville) v. FERC, 253 F.3d 741, 746 (D.C.Cir.2001), they claim that the Notice manifested only the FAA’s future intent to hire former PATCO controllers. Second, they contend that the FAA was still formulating its hiring process with regard to former PATCO controllers after publication of the Notice and that the FAA subsequently modified its policies in 1996 when it allowed former PATCO controllers who were employed by DOD to transfer to the FAA and maintain their DOD grade levels. Neither argument holds water. In Fourth Branch Assocs., we rejected the petitioner’s argument that FERC’s decision to initiate a surrender proceeding - in which FERC explicitly stated that it had made “no final decision” regarding the outcome of the proceeding - constituted a final agency action. ■ 253 F.3d at 746. In contrast, while the Notice here qualified the date, if ever, on which a former PAT-CO controller might be hired - stating that" }, { "docid": "16632264", "title": "", "text": "and hence is termed a “final” JD. See 33 C.F.R. § 331.9; Peoples Nat’l Bank, 362 F.3d at 337; Exxon Chem., 298 F.3d at 467. We conclude that the JD marks the consummation of the Corps’s decisionmak-ing process as to the question of jurisdiction. B. Second, to be final the JD must be an action “by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett, 520 U.S. at 178, 117 S.Ct. 1154 (internal quotation marks and citation omitted). Where “the action sought to be reviewed may have the effect of forbidding or compelling conduct on the part of the person seeking to review it, but only if some further action is taken by the [agency],” that action is nonfinal and nonreviewable because it “does not of itself adversely affect complainant but only affects his rights adversely on the contingency of future administrative action.” Rochester Tel. Corp. v. United States, 307 U.S. 125, 129-30, 59 S.Ct. 754, 83 L.Ed. 1147 (1939); see also FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 240-41, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980) (concluding that agency’s issuance of complaint, which stated it had “reason to believe” regulated party was violating statute, was not final agency action but merely “a threshold determination that further inquiry is warranted and that a complaint should initiate proceedings”); Luminant Generation Co., L.L.C. v. EPA 757 F.3d 439, 442, Nos. 12-60694, 13-60538, 2014 WL 3037692, at *3 (5th Cir.2014) (concluding that EPA’s issuance of notice of violation of Clean Air Act was not final agency action because, inter alia, “adverse legal consequences will flow only if the district court determines that Lumi-nant violated the Act or the SIP” and “if the EPA issued notice and then took no further action, Luminant would have no new legal obligation imposed on it and would have lost no right it otherwise employed”); AT & T Co. v. EEOC, 270 F.3d 973, 975 (D.C.Cir.2001) (“[The agency’s action] must have inflicted an actual, concrete injury upon the party seeking judicial review. Such an injury typically is not caused" }, { "docid": "17046344", "title": "", "text": "conclusions were correct, but that even if they were not, this court should affirm the dismissal on other grounds, including: (1) the appellants failed to show that they were aggrieved; (2) they had alternative remedies and thus no cause of action under the APA; (3) they failed to exhaust their alternative administrative remedies; and (4) they failed to show that the FAA’s decision to hire former PATCO controllers at the GS-9 level as opposed to their prior grade levels was arbitrary or capricious. II. DISCUSSION Section 704 of the APA provides for judicial review of “final agency action.” 5 U.S.C. § 704. Unless another statute prescribes otherwise, a suit challenging final agency action pursuant to section 704 must be commenced within six years after the right of action first accrues. 28 U.S.C. § 2401(a); Sendra Corp. v. Magaw, 111 F.3d 162, 165 (D.C.Cir.1997). The right of action first accrues on the date of the final agency action. Id.; see Impro Prods., Inc. v. Block, 722 F.2d 845, 850-51 (D.C.Cir.1983) (“In this case, where no formal review procedures existed, the cause of action accrued when the agency action occurred.”). The appellants first contend that the district court erred because the Recruitment Notice did not constitute final agency action. The United States Supreme Court explained in Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 1168-69, 137 L.Ed.2d 281 (1997), that: [a]s a general matter, two conditions must be satisfied for agency action to be “final”: First, the action must mark the “consummation” of the agency’s deci-sionmaking process, Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113, 68 S.Ct. 431, 437, 92 L.Ed. 568 (1948) - it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which “rights or obligations have been determined,” or from which “legal consequences will flow,” Port of Boston Marine Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 209-10, 27 L.Ed.2d 203 (1970). See Domestic Secs., Inc. v. SEC, 333 F.3d 239, 246 (D.C.Cir.2003). The appellants contend that the" }, { "docid": "1457529", "title": "", "text": "reviewing State-issued permits, a position it will insist State and local authorities comply with in setting the terms and conditions of permits issued to petitioners, a position EPA officials in the field are bound to apply. Of course, an agency’s action is not necessarily final merely because it is binding. Judicial orders can be binding; a temporary restraining order, for instance, compels compliance but it does not finally decide the case. In the administrative setting, “two conditions must be satisfied for agency action to be ‘final’: First, the action must mark the ‘consummation’ of the agency’s decisionmaking process, Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113, 68 S.Ct. 431, 92 L.Ed. 568 (1948) — -it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow,’ Port of Boston Marine Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 27 L.Ed.2d 203 (1970).” Bennett v. Spear, 520 U.S. 154, 178, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). The first condition is satisfied here. The “Guidance,” as issued in September 1998, followed a draft circulated four years earlier and another, more extensive draft circulated in May 1998. This latter document bore the title “EPA Draft Final Periodic Monitoring Guidance.” On the question whether States must review their emission standards and the emission standards EPA has promulgated to determine if the standards provide enough monitoring, the-Guidance is unequivocal — the State agencies must do so. See Guidance at 6-8. On the question whether the States may supersede federal and State standards and insert additional monitoring requirements as terms or conditions of a permit, the Guidance is certain — the State agencies must do so if they believe existing requirements are inadequate, as measured by EPA’s multi-factor, case-by-case analysis set forth in the Guidance. See Guidance at 7-8. EPA may think that because the Guidance, in all its particulars, is subject to change, it is not binding and therefore not final action. There" }, { "docid": "16242636", "title": "", "text": "that provided for in the APA. See Cabinet Mountains Wilderness/Scotchman’s Peak Grizzly Bears v. Peterson, 685 F.2d 678, 685 (D.C.Cir.1982). Thus, an agency action must be final in order to be judicially reviewable. See, e.g., Ctr. for Law and Educ. v. Dep’t of Educ., 396 F.3d 1152, 1165 (D.C.Cir.2005) (“APA ... bars review prior to final agency action.”); Indep. Petroleum Ass’n of Am. v. Babbitt, 235 F.3d 588, 594 (D.C.Cir.2001) (“ ‘[T]he requirement of a final agency action has been considered jurisdictional. If the agency action is not final, the court’ ... cannot reach the merits of the dispute.’ ” (quoting DRG Funding Corp. v. Sec’y of Housing & Urban Dev., 76 F.3d 1212 (D.C.Cir.1996))). The Supreme Court has established a two-part- test to determine when an agency action is reviewable as “final.” First, the action under review “must mark the ‘consummation’ - of the agency’s decisionmaking process — it must not be of a merely tentative or interlocutory nature.” Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (citing Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 68 S.Ct. 431, 437, 92 L.Ed. 568 (1948)). Second, the action must “be one by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow.’ ” Bennett, 520 U.S. at 178, 117 S.Ct. 1154 (quoting Port of Boston Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 27 L.Ed.2d 203 (1970)). The Protocols at issue in this case clearly marked the consummation of the decisionmaking process. The Protocols were published after the FWS solicited input from specialists and reviewed data from past field seasons. 1999 Protocol at 1, reprinted in J.A. at 90; 2000 Protocol at 2, reprinted in J.A. at 114. A notice of availability was published each year in the Federal Register. 1999 Notice of Availability, 64 Fed.Reg. at 4890; 2000 Notice of Availability, 65 Fed.Reg. at 8180. Ongoing revisions to the Protocols based on new data and feedback from interested parties do not negate finality. See United States Air Tour Ass’n." }, { "docid": "20565504", "title": "", "text": "LOI is an “order” at all, much less a final order subject to judicial review. Few courts have had the opportunity to address what constitutes an “order” under § 46110(a), but many, including this one, see City of Rochester v. Bond, 603 F.2d 927, 932-33 (D.C.Cir.1979), have interpreted the statutory section’s predecessor, 49 U.S.C. § 1486 (1976). See Aerosource, Inc. v. Slater, 142 F.3d 572, 577 (3d Cir.1998) (collecting cases). In doing so, the courts have concluded that an “order” must possess the quintessential feature of agency decisionmaking suitable for judicial review: finality. See Aerosource, 142 F.3d at 577-78; see also City of Rochester, 603 F.2d at 932-33; Air Cal. v. Dep’t of Transp., 654 F.2d 616, 622 (9th Cir.1981). The Supreme Court has explained: As a general matter, two conditions must be satisfied for agency action to be “final”: First, the action must mark the “consummation” of the agency’s deci-sionmaking process, Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113, 68 S.Ct. 431, 92 L.Ed. 568 (1948)—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which “rights or obligations have been determined,” or from which “legal consequences will flow,” Port of Boston Marine Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 27 L.Ed.2d 203 (1970). Bennett v. Spear, 520 U.S. 154, 177-178, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). Therefore, the outcome of this inquiry depends upon the place of the LOI in the FAA’s decisionmaking process and upon its precise legal effect. A LOI is an odd creature of statute that, unlike other more definitive agency decisions, merely “stat[es] an intention to obli gate from future budget authority an amount.” 49 U.S.C. § 47110(e)(1). “A letter of intent ... is not an obligation of the Government ... and the letter is not deemed to be an administrative commitment for financing.” Id. § 47110(e)(3). Instead, a LOI is a planning document that “establish[es] a schedule under which the [FAA] will reimburse the sponsor for the Government’s share of allowable project" }, { "docid": "21261487", "title": "", "text": "plaintiffs also state a claim upon which relief can be granted under the APA. The defendants admitted at oral argument on the present motions that, to the extent the plaintiffs seek review of the current High Level Implementation Plan, final agency action exists, assuming that Congress continues to appropriate funds for the plan. See Transcript of October 8, 1998, Motions Hearing at 24-25. The Court agrees. Whether Congress chooses in the future to continue to appropriate money to the Department of the Interior to execute the High Level Implementation Plan does not affect its current finality under the APA Thus, the High Level Implementation Plan constitutes final agency action. In addition, the accounting system that the government has enacted and continues to use in the administration of the IIM trust provides this Court with reviewable final agency action for the purposes of 5 U.S.C. § 704. To satisfy the requirement of finality of agency action under the APA, a court must make two determinations. First, “the action must mark the ‘consummation’ of the agency’s decisionmaking process — it must not be of a merely tentative or interlocutory nature.” Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (citing Chicago & Southern Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 113, 68 S.Ct. 431, 92 L.Ed. 568 (1948)). Second, “the action must be one by which ‘rights or obligations’ have been determined,” or from which “legal consequences will flow.” Id. (citing Port of Boston Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 27 L.Ed.2d 203 (1970)). The defendants contend that neither of the elements have been met in this case. The Court disagrees. Although the defendants surely can, and by their own admission should, reform the IIM trust accounting system, the deficiencies of their present system do not defeat its review on the grounds of finality. The system chosen by the defendants is being used in the administration of the plaintiffs’ accounts. The fact that the defendants have the power to change the system cannot render the present system they" }, { "docid": "21261488", "title": "", "text": "process — it must not be of a merely tentative or interlocutory nature.” Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (citing Chicago & Southern Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 113, 68 S.Ct. 431, 92 L.Ed. 568 (1948)). Second, “the action must be one by which ‘rights or obligations’ have been determined,” or from which “legal consequences will flow.” Id. (citing Port of Boston Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 27 L.Ed.2d 203 (1970)). The defendants contend that neither of the elements have been met in this case. The Court disagrees. Although the defendants surely can, and by their own admission should, reform the IIM trust accounting system, the deficiencies of their present system do not defeat its review on the grounds of finality. The system chosen by the defendants is being used in the administration of the plaintiffs’ accounts. The fact that the defendants have the power to change the system cannot render the present system they have chosen to be one interlocutory in nature. As the courts of the D.C. Circuit have recognized in the analogous context of review of regulatory rulemaking, “[i]f the possibility of unforseen amendments were sufficient to render an otherwise fit challenge unripe, review could be deferred indefinitely.” Sabella v. United States, 863 F.Supp. 1, 4 (D.D.C.1994) (quoting American Petroleum Inst. v. U.S. E.P.A., 906 F.2d 729, 739-40 (D.C.Cir.1990)). Moreover, the present case is distinguishable from a situation in which an agency has taken a tentative position. See Natural Resources Defense Council, Inc. v. EPA, 22 F.3d 1125, 1132-33 (D.C.Cir.1994). The agency’s accounting system has been and continues to be implemented, and the plaintiffs have no choice but to have their accounts administered under it. Thus, the accounting system that has been chosen and used by the defendants to administer the plaintiffs’ IIM accounts cannot be said to be tentative or interlocutory in nature, thereby satisfying the first prong of the finality analysis. As for the second element of the finality analysis, the defendants do not put" }, { "docid": "21427467", "title": "", "text": "33 C.F.R. § 331.12. Appellants then filed this action seeking judicial review of the Revised JD, alleging that it does not meet either of the applicable tests for the assertion of CWA jurisdiction established in Rapanos — the plurality’s “relatively permanent” test, or Justice Kennedy’s “significant nexus” test. The Corps moved to dismiss the complaint, arguing the Revised JD was not a final agency action and the issue was not ripe for judicial review. The district court dismissed the complaint for lack of final agency action. Hawkes Co., Inc. v. U.S. Army Corps of Eng’rs, 963 F.Supp.2d 868, 871, 878 (D.Minn.2013). This appeal followed. III. The APA provides for judicial review of a “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. The APA “evinces Congress’ intention and understanding that judicial review should be widely available to challenge the actions of federal administrative officials.” Califano v. Sanders, 430 U.S. 99, 104, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). When an agency action is final and, if final, appropriate for judicial review are issues that have arisen in a variety of federal agency contexts in the past one hundred years. See, e.g., Port of Bos. Marine Terminal Ass’n v. Rederiaktiebolaget Transatl., 400 U.S. 62, 70-71, 91 S.Ct. 203, 27 L.Ed.2d 203 (1970); Rochester Tel. Corp. v. United States, 307 U.S. 125, 132 n. 11, 143-44, 59 S.Ct. 754, 83 L.Ed. 1147 (1939). In Bennett, 520 U.S. at 177-78, 117 S.Ct. 1154, the Court synthesized its prior precedents on the first issue: As a general matter, two conditions must be satisfied for agency action to be “final”: First, the action must mark the consummation of the agency’s decision-making process — it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow. A. Though the Corps argues otherwise, we agree with the district court (and every court to consider the issue) that the Revised JD clearly meets the first Bennett factor —" }, { "docid": "23068483", "title": "", "text": "as is especially relevant in the present context, federal jurisdiction is similarly lacking when the administrative action in question is not “final” within the meaning of 5 U.S.C. § 704. See Independent Petroleum Ass’n of Am. v. Babbitt, 235 F.3d 588, 594 (D.C.Cir.2001) (“‘[T]he requirement of a final agency action has been considered jurisdictional. If the agency action is not final, the court therefore cannot reach the merits of the dispute.’” (quoting DRG Funding Corp. v. Sec. of Hous. & Urban Dev., 76 F.3d 1212, 1214 (D.C.Cir.1996))). This section provides in pertinent part that “[ajgency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action.” 5 U.S.C. § 704. In Bennett v. Spear, the Supreme Court delineated the contours of the “final agency action” requirement. It held: 520 U.S. 154, 177-78, 117 S.Ct. 1154, 1168, 137 L.Ed.2d 281 (1997) (quoting Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113, 68 S.Ct. 431, 437, 92 L.Ed. 568 (1948) and Port of Boston Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 209, 27 L.Ed.2d 203 (1970)); see also Darby v. Cisneros, 509 U.S. 137, 144, 113 S.Ct. 2539, 2543, 125 L.Ed.2d 113 (1993) (“ ‘[T]he finality requirement is concerned with whether the initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury ....’” (quoting Williamson County Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 193, 105 S.Ct. 3108, 3120, 87 L.Ed.2d 126 (1985))); Franklin v. Massachusetts, 505 U.S. 788, 797, 112 S.Ct. 2767, 2773, 120 L.Ed.2d 636 (1992) (“The core question [in the finality determination] is whether the agency has completed its decisionmaking process, and whether the result of that process is one that will directly affect the parties.”). By contrast, “the Supreme Court has defined a nonfinal agency order as one" }, { "docid": "7663312", "title": "", "text": "subject to the APA would render a large number of agency actions unreviewable. This would not comport with Congress’ intent to include within the scope of the APA “every form of agency power.” S.Doc. No. 248, 79th Cong., 2d Sess., at 255 (1946). Thus, for the reasons articulated by the D.C. Circuit in Ryan, this Court holds that an action that otherwise would qualify for the APA’s definition of “agency action” does not fall outside the coverage of the APA simply because the agency head acts in an advisory capacity to the President. The more important inquiry is whether that action is sufficiently final for APA purposes. The Supreme Court clearly stated the definition of “final agency action” in Bennett v. Spear: As a general matter, two conditions must be satisfied for agency action to be “final”: First, the action must mark the “consummation” of the agency’s deci-sionmaking process, Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113, 68 S.Ct. 431, 437, 92 L.Ed. 568 (1948) — -it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which “rights or obligations have been determined,” or from which “legal consequences will flow,” Port of Boston Marine Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 209, 27 L.Ed.2d 203 (1970). 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). The decisions in question — to create and supervise Task Force Sub-Groups, to hold meetings closed to the public and without complying with the various procedural requirements of FACA — were not tentative or interlocutory. Plaintiffs are not challenging decisions made by low level agency actors that were subject to the review of their supervisors. Plaintiffs are challenging decisions allegedly made on behalf of an agency by the head of that agency. Nothing in the allegations indicates that the actions challenged were later corrected or reversed by the same or other decision-makers. As decisions allegedly made by the head of an agency, these actions marked the consummation of the decision-making process. Second, these" }, { "docid": "23068484", "title": "", "text": "L.Ed.2d 281 (1997) (quoting Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113, 68 S.Ct. 431, 437, 92 L.Ed. 568 (1948) and Port of Boston Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 209, 27 L.Ed.2d 203 (1970)); see also Darby v. Cisneros, 509 U.S. 137, 144, 113 S.Ct. 2539, 2543, 125 L.Ed.2d 113 (1993) (“ ‘[T]he finality requirement is concerned with whether the initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury ....’” (quoting Williamson County Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 193, 105 S.Ct. 3108, 3120, 87 L.Ed.2d 126 (1985))); Franklin v. Massachusetts, 505 U.S. 788, 797, 112 S.Ct. 2767, 2773, 120 L.Ed.2d 636 (1992) (“The core question [in the finality determination] is whether the agency has completed its decisionmaking process, and whether the result of that process is one that will directly affect the parties.”). By contrast, “the Supreme Court has defined a nonfinal agency order as one that ‘does not itself adversely affect complainant but only affects his rights adversely on the contingency of future administrative action.’ ” American Airlines, Inc. v. Herman, 176 F.3d 283, 288 (5th Cir.1999) (quoting Rochester Tel. Corp. v. United States, 307 U.S. 125, 130, 59 S.Ct. 754, 757, 83 L.Ed. 1147 (1939)). As a general matter, two conditions must be satisfied for agency action to be “final”: First, the action must mark the “consummation” of the agency’s deci-sionmaking process, — it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which “rights or obligations have been determined,” or from which “legal consequences will flow.” In Bennett, which featured a challenge to a position set forth in a Federal Fish and Wildlife Service Biological Opinion, the Supreme Court distinguished the case at bar from two previous decisions in which the Court had held the administrative action in question to be non-final under § 704. See 520 U.S. at 178, 117 S.Ct. at 1168-69 (distinguishing Franklin, 505 U.S. 788," }, { "docid": "8469563", "title": "", "text": "within the meaning of 5 U.S.C. § 704 and Sierra Club lacks standing because it has suffered no actual injury. The court did not address ripeness. On appeal, Sierra Club argues FEMA’s approval of the L-142 levee was a final agency action, the EA and FONSI issued by the Corps was a final agency action, Sierra Club has standing to sue on behalf of its members, and the dispute is ripe for judicial review. We review de novo the district court’s dismissal of a complaint for lack of subject matter jurisdiction. See In re Sac & Fox Tribe of the Miss, in Iowa/Meskwaki Casino Lit., 340 F.3d 749, 755 (8th Cir.2003). II. Final Agency Action Neither the Stafford Act, NEPA, nor the statutes governing the Corps expressly provide for judicial review of the agency actions at issue. Therefore, jurisdiction is limited to judicial review under the APA, which provides for review of “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. Two conditions must be satisfied for an agency action to be final. “First, the action must mark the consummation of the agency’s decisionmaking process — it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (quotations and citations omitted). A broad agency program is not a final agency action within the meaning of 5 U.S.C. § 704. Lujan v. Nat’l Wildlife Fed., 497 U.S. 871, 890-94, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). Nor is an agency report that “serves more like a tentative recommendation than a final and binding determination.” Franklin v. Massachusetts, 505 U.S. 788, 798, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992). But if the agency has issued “a definitive statement of its position, determining the rights and obligations of the parties,” that action is final for purposes of judicial review despite the “possibility of further proceedings in the agency”" }, { "docid": "22271062", "title": "", "text": "Administrative Procedure Act (“APA”), 5 U.S.C. § 704, to review the AAO’s determination of Pinho’s statutory eligibility for adjustment of status. To support APA jurisdiction, the agency action must be final, it must adversely affect the party seeking review, and it must be non-discretionary. We consider these requirements in turn. Jurisdiction under the APA is available for review of “final agency action.” The Supreme Court has explained the finality requirement as follows: As a general matter, two conditions must be satisfied for agency action to be “final”: First, the action must mark the “consummation” of the agency’s decisionmaking process, Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113, 68 S.Ct. 431, 92 L.Ed. 568 (1948)—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which “rights or obligations have been determined,” or from which “legal consequences will flow,” Port of Boston Marine Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 27 L.Ed.2d 203 (1970). Bennett v. Spear, 520 U.S. 154, 178, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). The agency action at issue here satisfies these two conditions. Finality requires exhaustion of administrative remedies. If there remain steps that the immigrant can take to have an action reviewed within the agency, then the action is not final and judicial review is premature. In this case, the agency offered no further procedures that Pinho could invoke to have his claim of statutory eligibility heard. There is no provision for BIA review of an AAO status-adjustment eligibility decision. See 8 CFR § 3.1(b). If the agency institutes removal proceedings against an immigrant, then the immi grant may renew his or her application during those proceedings, 8 C.F.R. § 245.2, but we do not find this possibility sufficient to render the AAO’s eligibility determination “tentative or interlocutory” in this case. The reason is simple: if the agency does not seek to deport the immigrant, there can never be an appeal within the agency by which any higher level of administrative authority can be invoked to" }, { "docid": "21427468", "title": "", "text": "final, appropriate for judicial review are issues that have arisen in a variety of federal agency contexts in the past one hundred years. See, e.g., Port of Bos. Marine Terminal Ass’n v. Rederiaktiebolaget Transatl., 400 U.S. 62, 70-71, 91 S.Ct. 203, 27 L.Ed.2d 203 (1970); Rochester Tel. Corp. v. United States, 307 U.S. 125, 132 n. 11, 143-44, 59 S.Ct. 754, 83 L.Ed. 1147 (1939). In Bennett, 520 U.S. at 177-78, 117 S.Ct. 1154, the Court synthesized its prior precedents on the first issue: As a general matter, two conditions must be satisfied for agency action to be “final”: First, the action must mark the consummation of the agency’s decision-making process — it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow. A. Though the Corps argues otherwise, we agree with the district court (and every court to consider the issue) that the Revised JD clearly meets the first Bennett factor — it was the consummation of the Corps’ decisionmaking process on the threshold issue of the agency’s statutory authority. See Belle Co., 761 F.3d at 389-90; Fairbanks N. Star Borough v. U.S. Army Corps of Eng’rs, 543 F.3d 586, 591-93 (9th Cir.2008). The regulations provide that an Approved JD “constitute^] a Corps final agency action.” 33 C.F.R. § 320.1(a)(6). The Corps’ Regulatory Guidance Letter No. 08-02, at 2, 5, described an Approved JD as a “definitive, official determination that there are, or that there are not, jurisdictional ‘waters of the United States’ on a site,” and stated that an Approved JD “can be relied upon by a landowner, permit applicant, or other affected party ... for five years” (quotation omitted). Jurisdictional determinations and permitting decisions are discrete agency actions; a party may obtain a JD without seeking a permit, and may obtain a permit without seeking an Approved JD. Fairbanks, 543 F.3d at 593. Thus, when an Approved JD has issued, “the process of administrative decisionmaking has reached a stage where judicial review will not disrupt" }, { "docid": "7805926", "title": "", "text": "final agency action and had “no effect except to force plaintiffs to respond, an effect that does not amount to a cognizable legal consequence”). Rather, a “final agency action” under the APA “must be one by which ‘rights or obligations have been de termined,’ or from which ‘legal consequences will flow.’ ” Bennett v. Spear, 520 U.S. 154, 178, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (quoting Port of Boston Marine Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 27 L.Ed.2d 203 (1970)). Additionally, HUD’s alleged departure from its internal guidelines could not have violated East River’s due process rights, because “an administrative investigation adjudicates no legal rights .... ” S.E.C. v. Jerry T. O'Brien, Inc., 467 U.S. 735, 742, 104 S.Ct. 2720, 81 L.Ed.2d 615 (1984). Instead, the Supreme Court has held that “when governmental action does not partake of an adjudication, as for example, when a general fact-finding investigation is being conducted, it is not necessary that the full panoply of judicial procedures be used.” Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960); see also Concrete Pipe & Prods. of Calif., Inc. v. Constr. Laborers Pension Trust for S. Calif., 508 U.S. 602, 618, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993) (“Where an initial determination is made by a party acting in an enforcement capacity, due process may be satisfied by providing for a neutral adjudicator to conduct a de novo review of all factual and legal issues.”) (internal citations and quotation marks omitted). The charges of discrimination that HUD issued after investigating each of the three Complainants’ cases merely stated that there was “reasonable cause” to believe East River violated the FHA, not that it definitely did so. Following the issuance of a charge of discrimination by HUD, a respondent has the opportunity to defend itself in an adjudicatory proceeding before an administrative law judge or in federal district court. It is in those adjudicatory proceedings that a respondent’s due process rights are at stake. See S.E.C. v. Rivlin, No. 99-1455(RCL), 1999 WL 1455758, at *3 (D.D.C." }, { "docid": "7663313", "title": "", "text": "be of a merely tentative or interlocutory nature. And second, the action must be one by which “rights or obligations have been determined,” or from which “legal consequences will flow,” Port of Boston Marine Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 209, 27 L.Ed.2d 203 (1970). 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). The decisions in question — to create and supervise Task Force Sub-Groups, to hold meetings closed to the public and without complying with the various procedural requirements of FACA — were not tentative or interlocutory. Plaintiffs are not challenging decisions made by low level agency actors that were subject to the review of their supervisors. Plaintiffs are challenging decisions allegedly made on behalf of an agency by the head of that agency. Nothing in the allegations indicates that the actions challenged were later corrected or reversed by the same or other decision-makers. As decisions allegedly made by the head of an agency, these actions marked the consummation of the decision-making process. Second, these actions determined “rights or obligations” and created “legal consequences.” 520 U.S. at 178, 117 S.Ct. 1154. The decisions to hold meetings without public access to the meetings or the records created indeed had a legal consequence — the denial of the public’s right of access to that information. Plaintiffs and other interested groups and citizens were prevented from enforcing their right to access information that exists pursuant to FACA. Subsequent actions taken without granting access, and the failure to grant access itself, constitute final agency action. Defendants argue that recognizing the denial of information as a final agency action confuses the APA standard with FOIA. FACA imposes no requirements on individual committee members, argues defendants, so any denial of information by individual committee members cannot violate the law. Plaintiffs, however, are not challenging an individual denial of access to a particular information request. FACA obligates the government to make open and available to the public the meetings and records of advisory committees generally, without respect to any particular request. That general failure to do so" }, { "docid": "7805925", "title": "", "text": "discrimination, this defense fails because the Administrative Procedure Act (“APA”) does not permit interlocutory review of non-final agency actions. Doc. 23 at 2. Under the APA, only “[ajgency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.” 5 U.S.C. § 704. East River claims that it is “indisputable that HUD’s issuance of the charges of discrimination was its ‘final agency action’ within the meaning of the APA....” Doc. 39 at 2. However, according to the relevant case law, HUD’s issuance of a charge of discrimination is not a “final agency action.” See FTC v. Std. Oil Co. of Calif., 449 U.S. 232, 246, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980) (Federal Trade Commission’s issuance of a complaint stating reason to believe company had violated the Federal Trade Commission Act was not a final agency action); Top Choice Distribs. v. U.S. Postal Serv., 138 F.3d 463, 467 (2d Cir.1998) (U.S. Postal Service’s issuance of an administrative complaint was not a final agency action and had “no effect except to force plaintiffs to respond, an effect that does not amount to a cognizable legal consequence”). Rather, a “final agency action” under the APA “must be one by which ‘rights or obligations have been de termined,’ or from which ‘legal consequences will flow.’ ” Bennett v. Spear, 520 U.S. 154, 178, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (quoting Port of Boston Marine Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 27 L.Ed.2d 203 (1970)). Additionally, HUD’s alleged departure from its internal guidelines could not have violated East River’s due process rights, because “an administrative investigation adjudicates no legal rights .... ” S.E.C. v. Jerry T. O'Brien, Inc., 467 U.S. 735, 742, 104 S.Ct. 2720, 81 L.Ed.2d 615 (1984). Instead, the Supreme Court has held that “when governmental action does not partake of an adjudication, as for example, when a general fact-finding investigation is being conducted, it is not necessary that the full panoply of judicial procedures be used.” Hannah v. Larche, 363" }, { "docid": "3150010", "title": "", "text": "license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13). “ ‘Order’ means the whole or a part of a final disposition, whether affirmative, negative, in-junctive, or declaratory in form, of an agency in a matter other than rule making but including licensing.” 5 U.S.C. § 551(6). See Federal Trade Comm’n v. Standard Oil Co. of Calif., 449 U.S. 232, 238 n. 7, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980). Although the APA’s finality requirement is “flexible” and “pragmatic,” Abbott Laboratories v. Gardner, 387 U.S. at 149-50, 87 S.Ct. 1507, 18 L.Ed.2d 681. [a]s a general matter, two conditions must be satisfied for an agency action to be “final”: First, the action must mark the “consummation” of the agency’s de-cisionmaking process[ ]■—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which “rights or obligations have been determined,” or from which “legal consequences will flow[.]” Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (emphasis added) (quoting Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113, 68 S.Ct. 431, 92 L.Ed. 568 (1948) (“[Administrative orders are not reviewable unless and until they impose an obligation, deny a right or fix some legal relationship as a consummation of the administrative process.” (emphasis added)); Port of Boston Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 27 L.Ed.2d 203 (1970)). On the other hand, the Supreme Court has defined a nonfinal agency order as one that “does not itself adversely affect complainant but only affects his rights adversely on the contingency of future administrative action.” Rochester Tel. Corp. v. United States, 307 U.S. 125, 130, 59 S.Ct. 754, 83 L.Ed. 1147 (1939). Under the APA, agency action that is merely “preliminary, procedural, or intermediate” is subject to judicial review at the termination of the proceeding in'which the interlocutory ruling is made. 5 U.S.C. § 704 ; F.T.C. v. Standard Oil Co. of Cal., 449 U.S. 232, 245, 101 S.Ct. 488, 66 L.Ed.2d" }, { "docid": "20565505", "title": "", "text": "be of a merely tentative or interlocutory nature. And second, the action must be one by which “rights or obligations have been determined,” or from which “legal consequences will flow,” Port of Boston Marine Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 27 L.Ed.2d 203 (1970). Bennett v. Spear, 520 U.S. 154, 177-178, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). Therefore, the outcome of this inquiry depends upon the place of the LOI in the FAA’s decisionmaking process and upon its precise legal effect. A LOI is an odd creature of statute that, unlike other more definitive agency decisions, merely “stat[es] an intention to obli gate from future budget authority an amount.” 49 U.S.C. § 47110(e)(1). “A letter of intent ... is not an obligation of the Government ... and the letter is not deemed to be an administrative commitment for financing.” Id. § 47110(e)(3). Instead, a LOI is a planning document that “establish[es] a schedule under which the [FAA] will reimburse the sponsor for the Government’s share of allowable project costs, as amounts become available.” Id. § 47110(e)(1). It does not complete the agency’s decisionmaking process, as the City is required to file a further grant application for approval before the FAA will be obligated to disburse the funds described in the LOI. See id. § 47105. Thus, not only is the funding decision contingent on congressional appropriation, it also will require further administrative process. It follows that the LOI is non-final because it “does not itself adversely affect [the petitioners] but only affects [their] rights adversely on the contingency of future administrative action.” DRG Funding Corp. v. Sec’y of Hous. and Urban Dev., 76 F.3d 1212, 1214 (D.C.Cir.1996) (quoting Rochester Tel. Corp. v. United States, 307 U.S. 125, 130, 59 S.Ct. 754, 83 L.Ed. 1147 (1939)). Moreover, the LOI is non-final because it does not impose an obligation, deny a right, or otherwise fix some legal relationship. See Reliable Automatic Sprinkler Co. v. Consumer Prod. Safety Comm’n, 324 F.3d 726, 731 (D.C.Cir.2003). The statutory text is clear in this regard. When asked during oral" } ]

[ { "docid": "23594843", "title": "", "text": "neglect and abandonment and possible neurological damage or Brewer’s evidence of mental illness, substance abuse, and a troubled childhood could feel compelled to provide a “yes” answer to the same question, finding himself without a means for giving meaningful effect to the mitigating qualities of such evidence. In such a case, there is a reasonable likelihood that the special issues would preclude that juror from giving meaningful consideration to such mitigating evidence, as required by Penry I. See Johnson, 509 U. S., at 367 (explaining that in Boyde v. California, 494 U. S. 370, 380 (1990), “we held that a reviewing court must determine ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence’ ”). In three later cases, we gave Penry I the “fair reading” required by Johnson and repudiated several Fifth Circuit precedents providing the basis for its narrow reading of that case. First, in our review of Penry’s resentencing, at which the judge had supplemented the special issues with a nullification instruction, we again concluded that the jury had not been provided with an adequate “‘vehicle for expressing its “reasoned moral response” ’ ” to his mitigating evidence. Penry v. Johnson, 532 U. S. 782, 797 (2001) (Penry II). Indeed, given that the resentencing occurred after the enactment of AEDPA, we concluded (contrary to the views of the Fifth Circuit, which had denied Penry a COA) that the GCA’s judgment affirming the death sentence was objectively unreasonable. Id., at 803-804. Second, and as we have already noted, in Tennard we held that the Fifth Circuit’s test for identifying relevant mitigating evidence was incorrect. 542 U. S., at 284. Most recently, in Smith v. Texas, 543 U. S. 37 (2004) (per curiam), and again contrary to the views of the Fifth Circuit, we held that a nullification instruction that was different from the one used in Penry’s second sentencing hearing did not foreclose the defendant’s claim that the special issues had precluded the jury from “expressing a ‘reasoned moral response’ to all of" } ]

[ { "docid": "83958", "title": "", "text": "the Texas capital sentencing scheme (particularly the mitigation special issue) permits a capital sentencing jury to adequately consider all circumstances relevant to a petitioner’s offense, character and background, and personal moral culpability. The Texas Court of Criminal Appeals adopted the state habeas trial court’s findings and conclusions. Ex parte Moore, App. No. 40,046-02 (Tex. Crim.App. May 14, 2003). C. AEDPA Review The fundamental analytical problem with this claim is the fact petitioner has consistently failed to allege any specific facts showing precisely how the Texas capital sentencing scheme either permits the imposition of the death penalty in a discriminatory manner or “fails to give effect to the individual circumstances.” Petitioner also alleges no specific facts identifying any potentially mitigating evidence admitted during his second capital trial which he claims his capital sentencing jury was unable to adequately consider. Conclusory assertions do not raise a constitutional issue in a habeas proceeding. Murphy v. Dretke, 416 F.3d 427, 437 (5th Cir.2005), cert. denied, 546 U.S. 1098, 126 S.Ct. 1028, 163 L.Ed.2d 868 (2006); Collier v. Cockrell, 300 F.3d 577, 587 (5th Cir.2002), cert. denied, 537 U.S. 1084, 123 S.Ct. 690, 154 L.Ed.2d 586 (2002); Ross v. Etelle, 694 F.2d 1008, 1012 (5th Cir.1983). The constitutional standard for evaluating the efficacy of punishment-phase jury instructions and special issues is well-settled: “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Abdul-Kabir v. Quarterman, — U.S. -, -, 127 S.Ct. 1654, 1674, 167 L.Ed.2d 585 (2007); Ayers v. Belmontes, — U.S.-,-, 127 S.Ct. 469, 474, 166 L.Ed.2d 334 (2006); Johnson v. Texas, 509 U.S. 350, 367, 113 S.Ct. 2658, 2669, 125 L.Ed.2d 290 (1993); Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990). “Although the reasonable likelihood standard does not require that the defendant prove that it was more likely than not that the jury was prevented from giving effect to the evidence, the standard requires more than a mere possibility of such a bar.” Johnson v. Texas, 509 U.S. at 367, 113" }, { "docid": "21706381", "title": "", "text": "380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). The Supreme Court has consistently applied this standard to evaluate challenges to punishment-phase jury instructions. See Weeks v. Angelone, 528 U.S. 225, 226, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000) (emphasizing the Boyde test requires a showing of a reasonable likelihood, as opposed to a mere possibility, the jury construed the jury instructions to preclude its consideration of relevant mitigating evidence); Jones v. United States, 527 U.S. 373, 390 & n. 9, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999) (holding the same); Calderon v. Coleman, 525 U.S. 141, 146, 119 S.Ct. 500, 142 L.Ed.2d 521 (1998) (holding the same); Buchanan v. Angelone, 522 U.S. 269, 276, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998) (holding the same); Johnson v. Texas, 509 U.S. 350, 367, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993) (holding Boyde requires a showing of a reasonable likelihood the jury interpreted the jury instructions so as to preclude it from considering relevant mitigating evidence). This “reasonable likelihood” standard does not require the petitioner to prove the jury “more likely than not” interpreted the challenged instruction in an impermissible way; however, the petitioner must demonstrate more than “only a possibility” of an impermissible interpretation. Johnson v. Texas, 509 U.S. at 367, 113 S.Ct. 2658 Boyde v. California, 494 U.S. at 380, 110 S.Ct. 1190. This Court must analyze the challenged language included in the jury charge within the context of the overall jury charge. Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). “In evaluating the instructions, we do not engage in a technical parsing of this language of the instructions, but instead approach the instructions in the same way that the jury would — with a ‘commonsense understanding of the instructions in the light of all that has taken place at the trial.’ ” Johnson v. Texas, 509 U.S. at 368, 113 S.Ct. 2658; Boyde v. California, 494 U.S. at 381, 110 S.Ct. 1190. Petitioner’s arguments in support of this claim misconstrue the appropriate constitutional standard for evaluating the propriety of jury instructions at the punishment" }, { "docid": "11338790", "title": "", "text": "Eddings v. Oklahomo, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989)). Montoya argues that because the trial court instructed the jury on Texas’ “law of parties” but failed to clarify that the “law of parties” does not apply during the penalty phase of his trial, the jury was precluded from considering or giving effect to his mitigating evidence that Villavicencio and not he killed Kilheffer. In Boyde, the Supreme Court clarified its standard for such a claim: “We think the proper inquiry in such a case is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Id. at 380, 110 S.Ct. at 1198; see Johnson v. Texas, — U.S.-,-, 113 S.Ct. 2658, 2669, 125 L.Ed.2d 290 (1993) (holding that petitioner’s Penry/Eddings/Lockett claim with respect to Texas special issues was governed by Boyde standard). We have repeatedly rejected claims similar to Montoya’s, holding that if a jury believed that the defendant’s accomplice killed the murder victim, it could answer “no” to either of the first two Texas special issues. See Harris v. Collins, 990 F.2d 185, 188-89 (5th Cir.), cert. denied, — U.S.-, 113 S.Ct. 3069, 125 L.Ed.2d 746 (1993); Stewart v. Collins, 978 F.2d 199, 201 (5th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1951, 123 L.Ed.2d 656 (1993); Bridge v. Collins, 963 F.2d 767, 770 (5th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 3044, 125 L.Ed.2d 729 (1993). In Stewart we held: [The petitioner] does not satisfy his burden of demonstrating a “reasonable likelihood that the jury ... appli[ed] the challenged instructions in a way that prevented] the consideration of constitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 371, 110 S.Ct. 1190, 1191, 108 L.Ed.2d 316 (1990). The punishment phase issues allowed the jury to give mitigating effect to [the petitioner’s] alleged non-triggerman status if they chose to credit his version of the offense. Id. at 201. Our holding in Stewart forecloses Montoya’s claim. B" }, { "docid": "1843064", "title": "", "text": "S.Ct. at 2638-39 (suggesting the Eighth Amendment permits granting capital sentencing juries “unbridled discretion” at the selection phase). The “eligibility” determination discussed in Tuilaepa and Loving occurred at the guilt-innocence phase of petitioner’s capital murder trial. Woods v. Johnson, 75 F.3d at 1033-34. Thus, even assuming the lack of definitions of key terms included in petitioner’s punishment phase jury charge effectively granted petitioner’s jury what amounted to “unfettered discretion” in deciding whether to impose a sentence of death, as petitioner contends herein, that fact did not deprive petitioner of the protection of any federal constitutional right. 3. Punishment Phase Instructions Did Not Preclude Jury’s Consideration of Mitigating Evidence The Supreme Court has established the constitutional standard for evaluating the propriety of a jury instruction at the punishment phase of a capital murder trial as “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990). The Supreme Court has consistently applied this standard to evaluate challenges to punishment-phase jury instructions. See Weeks v. Angelone, 528 U.S. 225, 226, 120 S.Ct. 727, 729, 145 L.Ed.2d 727 (2000) (emphasizing the Boyde test requires a showing of a reasonable likelihood, as opposed to a mere possibility, the jury construed the jury instructions to preclude its consideration of relevant mitigating evidence); Jones v. United States, 527 U.S. 373, 390 n. 9, 119 S.Ct. 2090, 2102-03 n. 9, 144 L.Ed.2d 370 (1999) (holding the same); Calderon v. Coleman, 525 U.S. 141, 146, 119 S.Ct. 500, 503, 142 L.Ed.2d 521 (1998) (holding the same); Buchanan v. Angelone, 522 U.S. 269, 276, 118 S.Ct. 757, 761, 139 L.Ed.2d 702 (1998) (holding the same); Johnson v. Texas, 509 U.S. 350, 367, 113 S.Ct. 2658, 2669, 125 L.Ed.2d 290 (1993) (holding Boyde requires a showing of a reasonable likelihood the jury interpreted the jury instructions so as to preclude it from considering relevant mitigating evidence). The fact the jury instructions might have been erroneous as a matter of state law" }, { "docid": "21214436", "title": "", "text": "211 F.3d 895, 897-98 (5th Cir.2000)(holding the Teague v. Lane non-retroactivity doctrine precluded applying such a rule in a federal habeas context); Davis v. Scott, 51 F.Sd 457, 466-67 (5th Cir.1995)(holding the same), cert. denied, 516 U.S. 992, 116 S.Ct. 525, 133 L.Ed.2d 432 (1995); Jacobs v. Scott, 31 F.3d 1319, 1328-29 (5th Cir.1994)(rejecting application of the Supreme Court’s holding in Mills v. Maryland[, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988)] to a Texas capital sentencing proceeding), cert. denied, 513 U.S. 1067, 115 S.Ct. 711, 130 L.Ed.2d 618 (1995); Martinez v. Dretke, 426 F.Supp.2d 403, 534-36 (W.D.Tex.2006)(relying on the Supreme Court’s holding in Jones v. United States to reject the same arguments raised by petitioner herein premised on the Supreme Court’s holdings in Mills v. Maryland and Caldwell v. Mississippi[, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985)]); Kimmel v. Dretke, 2005 WL 1959074, *19-*21 (W.D.Tex. August 16, 2005)(holding the same), CoA denied, 199 Fed.Appx. 338 (5th Cir.2006), cert. denied, — U.S. -, 127 S.Ct. 2034, 167 L.Ed.2d 773 (2007); Amador v. Dretke, 2005 WL 827092, *23-*24 (W.D.Tex. April 11, 2005)(holding the same), affirmed, 458 F.3d 397 (5th Cir.2006), cert. denied, — U.S. -, 127 S.Ct. 2129, 167 L.Ed.2d 866 (2007); Brown v. Dretke, 2004 WL 2793266, *13-*14 (W.D.Tex. December 3, 2004)(holding the same), CoA denied, 419 F.3d 365 (5th Cir.2005), cert. denied, — U.S. -, 126 S.Ct. 1434, 164 L.Ed.2d 137 (2006); Hinojosa v. Dretke, 2004 WL 2434353, *24 (W.D.Tex. September 30, 2004)(holding the same), CoA denied, 141 Fed.Appx. 395 (5th Cir.2005), cert. denied, 547 U.S. 1022, 126 S.Ct. 1569, 164 L.Ed.2d 305 (2006). Simply put, no federal court has ever held a Texas capital defendant has a constitutional right to a punishment-phase jury instruction advising his capital sentencing jury of the effect of hung jury or a single hold-out juror. Accordingly, the Texas Court of Criminal Appeals’ rejection on the merits of petitioner complaint about the absence of such an instruction from his punishment-phase jury instructions was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by" }, { "docid": "11338789", "title": "", "text": "been indicted as a principal may, on proper instructions, be convicted on evidence showing only that he aided and abetted the commission of the offense.” United States v. Robles-Pantoja, 887 F.2d 1250, 1255 (5th Cir.1989) (citations omitted). Similarly, it was not error for Jacobs to be indicted as a principal and then to be convicted under the “law of the parties.” Id. Under Jacobs, Montoya is not entitled to habeas relief based on the trial court’s § 7.02(b) instruction. Ill A In his cross-appeal, Montoya argues first that the district court erroneously rejected his eighth claim, in which he contended that the trial court’s jury instructions prevented the jury from considering his mitigating evidence that he was not the principal actor in the murder. “The Eighth Amendment requires that the jury be able to consider and give effect to all relevant mitigating evidence offered by petitioner.” Boyde v. California, 494 U.S. 370, 377-78, 110 S.Ct. 1190, 1196, 108 L.Ed.2d 316 (1990) (citing Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Eddings v. Oklahomo, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989)). Montoya argues that because the trial court instructed the jury on Texas’ “law of parties” but failed to clarify that the “law of parties” does not apply during the penalty phase of his trial, the jury was precluded from considering or giving effect to his mitigating evidence that Villavicencio and not he killed Kilheffer. In Boyde, the Supreme Court clarified its standard for such a claim: “We think the proper inquiry in such a case is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Id. at 380, 110 S.Ct. at 1198; see Johnson v. Texas, — U.S.-,-, 113 S.Ct. 2658, 2669, 125 L.Ed.2d 290 (1993) (holding that petitioner’s Penry/Eddings/Lockett claim with respect to Texas special issues was governed by Boyde standard). We have repeatedly rejected claims similar to Montoya’s, holding that if" }, { "docid": "1843063", "title": "", "text": "v. Texas, 509 U.S. 350, 362, 113 S.Ct. 2658, 2666, 125 L.Ed.2d 290 (1993)(holding its previous opinions upholding the Texas capital sentencing scheme found no constitutional deficiency in the means used to narrow the group of offenders subject to capital punishment because the statute itself adopted five different classifications of murder for that purpose); Woods v. Johnson, 75 F.3d at 1033-34 (recognizing the constitutionally narrowing function is performed in Texas at the guilt-innocence phase of a capital murder trial). At the selection phase, a sentencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence. Buchanan v. Angelone, 522 U.S. at 276, 118 S.Ct. at 761. However, as explained in Buchanan, the Supreme Court has never held that granting capital sentencing juries complete discretion at the selection phase violates the Eighth Amendment. Buchanan v. Angelone, 522 U.S. at 276, 118 S.Ct. at 761-62. On the contrary, the Supreme Court’s opinion in Tuilaepa strongly suggests the opposite is actually the case. Tuilaepa v. California, 512 U.S. at 978-79, 114 S.Ct. at 2638-39 (suggesting the Eighth Amendment permits granting capital sentencing juries “unbridled discretion” at the selection phase). The “eligibility” determination discussed in Tuilaepa and Loving occurred at the guilt-innocence phase of petitioner’s capital murder trial. Woods v. Johnson, 75 F.3d at 1033-34. Thus, even assuming the lack of definitions of key terms included in petitioner’s punishment phase jury charge effectively granted petitioner’s jury what amounted to “unfettered discretion” in deciding whether to impose a sentence of death, as petitioner contends herein, that fact did not deprive petitioner of the protection of any federal constitutional right. 3. Punishment Phase Instructions Did Not Preclude Jury’s Consideration of Mitigating Evidence The Supreme Court has established the constitutional standard for evaluating the propriety of a jury instruction at the punishment phase of a capital murder trial as “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990). The" }, { "docid": "13172673", "title": "", "text": "of justice exception to the procedural default doctrine. Therefore, petitioner cannot overcome his state procedural default on this claim and federal habeas review of same is precluded. D. AEDPA Analysis The Supreme Court has established the constitutional standard for evaluating the propriety of a jury instruction at the punishment-phase of a capital murder trial as “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990). The Supreme Court has consistently applied this .standard to evaluate challenges to punishment-phase jury instructions. See Weeks v. Angelone, 528 U.S. 225, 226, 120 S.Ct. 727, 729, 145 L.Ed.2d 727 (2000) (emphasizing the Boyde test requires a showing of a reasonable likelihood, as opposed to a mere possibility, the jury construed the jury instructions to preclude its consideration of relevant mitigating evidence); Jones v. United States, 527 U.S. 373, 390 & n. 9, 119 S.Ct. 2090, 2102-03 & n. 9, 144 L.Ed.2d 370 (1999) (holding the same); Calderon v. Coleman, 525 U.S. 141, 146, 119 S.Ct. 500, 503, 142 L.Ed.2d 521 (1998) (holding the same); Buchanan v. Angelone, 522 U.S. 269, 276, 118 S.Ct. 757, 761, 139 L.Ed.2d 702 (1998) (holding the same); Johnson v. Texas, 509 U.S. 350, 367, 113 S.Ct. 2658, 2669, 125 L.Ed.2d 290 (1993) (holding Boyde requires a showing of a reasonable likelihood the jury interpreted the jury instructions so as to preclude it from considering relevant mitigating evidence). This “reasonable likelihood” standard does not require the petitioner to prove the jury “more likely than not” interpreted the challenged instruction in an impermissible way; however, the petitioner must demonstrate more than “only a possibility” of an impermissible interpretation. Johnson v. Texas, 509 U.S. at 367, 113 S.Ct. at 2669; Boyde v. California, 494 U.S. at 380, 110 S.Ct. at 1198. This Court must analyze the challenged language included in the jury charge within the context of the overall jury charge. Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400," }, { "docid": "13172672", "title": "", "text": "of the United States, nor an unreasonable determination of the facts in light of the evidence presented in the petitioner’s state trial and habeas corpus proceedings. XIII. Narrow Statutory Definition of “Mitigating Evidence” A. The Claim Petitioner argues Texas’ statutory definition of “mitigating evidence” is unconstitutionally narrow on its face because it is limited to evidence which reduces a defendant’s moral blameworthiness or death worthiness. B. State Court Disposition The state habeas court concluded: (1) petitioner proeedurally defaulted on this complaint by failing to timely object to the definition used in his punishment-phase jury charge; (2) the argument had no merit; and (3) petitioner’s punishment-phase jury instructions did not unconstitutionally limit the jury’s ability to consider any mitigating evidence properly before it during the punishment-phase of petitioner’s trial. C. Procedural Default Petitioner does not allege any specific facts establishing his trial counsel’s failure to timely object to the statutory definition of “mitigating evidence” contained in petitioner’s punishment-phase jury charge constituted ineffective assistance. Likewise, petitioner has alleged no specific facts sufficient to satisfy the fundamental miscarriage of justice exception to the procedural default doctrine. Therefore, petitioner cannot overcome his state procedural default on this claim and federal habeas review of same is precluded. D. AEDPA Analysis The Supreme Court has established the constitutional standard for evaluating the propriety of a jury instruction at the punishment-phase of a capital murder trial as “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990). The Supreme Court has consistently applied this .standard to evaluate challenges to punishment-phase jury instructions. See Weeks v. Angelone, 528 U.S. 225, 226, 120 S.Ct. 727, 729, 145 L.Ed.2d 727 (2000) (emphasizing the Boyde test requires a showing of a reasonable likelihood, as opposed to a mere possibility, the jury construed the jury instructions to preclude its consideration of relevant mitigating evidence); Jones v. United States, 527 U.S. 373, 390 & n. 9, 119 S.Ct. 2090, 2102-03 & n. 9," }, { "docid": "12309130", "title": "", "text": "penalty hearing: A sentence of death shall not be imposed unless the jury finds: (1) Beyond a reasonable doubt at least one statutory aggravating circumstance; and (2) Unanimously recommends, after weighing all relevant evidence in aggravation or mitigation which bears upon the particular circumstances or details of the commission of the offense and the character and propensities of the offender, that a sentence of death shall be imposed. Where the jury submits such a finding and recommendation, the Court shall sentence the defendant to death. A finding by the jury of a statutory aggravating circumstance, and a consequent recommendation of death, supported by the evidence, shall be binding on the Court. App. 392 (emphasis added). Riley contends that, given the placement of the word “consequent,” “a reasonable jury could understand the underscored sentence to mean that the effect of a finding that a statutory aggravating circumstance existed, is that the death penalty must be imposed.” Appellant’s Br. 59. Because the trial judge had previously informed the jury that the statutory aggravating circumstance — commission of the murder during a robbery — had already been proven beyond a reasonable doubt in the guilt phase, Riley argues that a reasonable jury could have read the instruction to mean that it need not consider mitigation evidence. When reviewing a jury instruction that is claimed to impermissibly restrict a jury’s consideration of relevant evidence, a court must ask “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). If there is “only a possibility” of such inhibition, however, the challenge must fail. Id. Moreover, the challenged instructions “must be evaluated not in isolation but in the context of the entire charge.” Jones v. United States, 527 U.S. 373, 391, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999). When the jury charge is read as a whole, there is no reasonable likelihood that a jury could have understood it to preclude consideration of mitigating cir cumstances. At" }, { "docid": "6028982", "title": "", "text": "“based on any sympathies ... either for defendant or against him.” He urges that the guilt and penalty phase instructions, combined with the prosecutor’s argument, violated the Eighth and Fourteenth Amendments by preventing the jury from considering sympathy for Mayfield in determining his sentence. The Supreme Court has admonished that state jury instructions must be upheld against constitutional attack unless “there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). At the penalty phase of a capital trial, this directive requires that “the sentencer ... be able to consider and give effect to mitigating evidence in imposing the sentence, so that the sentence imposed reflects a reasoned moral response to the defendant’s background, character, and crime.” Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 1916, 150 L.Ed.2d 9 (2001) (quotations and citations omitted). Applying these standards, federal courts have consistently held that jury instructions admonishing the jury to base its penalty determination on mitigating or aggravating evidence, not on sympathy for the defendant, pass constitutional muster. See, e.g., Victor v. Nebraska, 511 U.S. 1, 13, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994) (holding that an instruction not to be swayed by mere sympathy correctly pointed the jurors’ attention to the evidence before them); Johnson v. Texas, 509 U.S. 350, 371-72, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993) (holding that the constitution does not require that a capital jury be able to dispense mercy solely on the basis of a “sympathetic response to the defendant”); California v. Brown, 479 U.S. 538, 542-43, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987) (permitting an instruction that the jury could not base its sentencing decision on sympathy); Williams v. Calderon, 52 F.3d 1465, 1481 (9th Cir.1995) (observing that “ ‘no sympath/ instructions have been held by the Supreme Court to be consistent with its mandate ... that the sentencer be permitted to consider all mitigating evidence”) (citations omitted). In light of this precedent, no reasonable jurist" }, { "docid": "23215218", "title": "", "text": "racism. . Under Buchanan v. Angelone, 522 U.S. 269, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998), the standard for reviewing jury instructions from the selection phase of a capital sentencing process is “whether there is a reasonable lilcelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.’’ Id. at 276, 118 S.Ct. 757 (quoting Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990)). The Supreme Court has thus held that the Eighth and Fourteenth Amendments do not require a trial court to give a specific instruction on mitigating evidence, much less define what it means. Id. at 277, 118 S.Ct. 757 (holding that a jury instruction to base the decision on \"all the evidence” was constitutionally sufficient because it \"afforded jurors an opportunity to consider mitigating evidence”). The only constitutional requirement is that the instructions do not preclude a capital jury from considering mitigating evidence. Id. at 276, 118 S.Ct. 757; see also Weeks v. Ange-lone, 528 U.S. 225, 232, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000). We note that the instruction challenged in this case complied with the Buchanan mandate that a trial court should not restrict a jury's consideration of mitigating evidence. However, Buchanan is not controlling because it was decided three and a half years after Mason’s conviction, and, under AEDPA, Supreme Court precedent must be in existence prior to a conviction to control a habeas court’s analysis. See Williams, 260 F.3d at 703. . In Lowenfield, the jury requested additional instructions after it became unable to reach a decision on the second day of deliberations. 484 U.S. at 234, 108 S.Ct. 546. The trial court then asked the individual jurors to answer in writing whether \"further deliberations would be helpful in obtaining a verdict.” Id. Eight jurors responded in the affirmative. Id. After denying a defense motion for a mistrial, the trial court directed the jury to return to the courtroom for further instructions. Id. At this time, the jury gave the trial court a new note that stated that some" }, { "docid": "83999", "title": "", "text": "merit. The Supreme Court has implicitly rejected petitioner’s arguments underlying this claim. See Jones v. United States 527 U.S. 373, 382, 119 S.Ct. 2090, 2099, 144 L.Ed.2d 370 (1999)(holding the Eighth Amendment does not require a capital sentencing jury be instructed as to the effect of a “breakdown in the deliberative process,” because (1) the refusal to give such an instruction does not affirmatively mislead the jury regarding the effect of its verdict and (2) such an instruction might well undermine the strong governmental interest in having the jury express the conscience of the community on the ultimate question of life or death). On numerous occasions, the Fifth Circuit has expressly rejected the legal premise underlying petitioner’s nineteenth claim herein, i.e., the argument a Texas capital murder defendant is constitutionally entitled to have his punishment-phase jury instructed regarding the consequences of a hung jury or a single holdout juror. See, e.g., Hughes v. Dretke, 412 F.3d 582, 593-94 (5th Cir.2005)(holding the same arguments underlying petitioner’s nineteenth claim herein were so legally insubstantial as to be unworthy of a certificate of appealability), cert. denied, 546 U.S. 1177, 126 S.Ct. 1347, 164 L.Ed.2d 60 (2006); Alexander v. Johnson, 211 F.3d 895, 897-98 (5th Cir.2000)(holding the Teague v. Lane non-retroactivity doctrine precluded applying such a rule in a federal habeas context); Davis v. Scott, 51 F.3d 457, 466-67 (5th Cir.1995)(holding the same), cert. denied, 516 U.S. 992, 116 S.Ct. 525, 133 L.Ed.2d 432 (1995); Jacobs v. Scott, 31 F.3d 1319, 1328-29 (5th Cir.1994)(rejecting application of the Supreme Court’s holding in Mills v. Maryland to a Texas capital sentencing proceeding), cert. denied, 513 U.S. 1067, 115 S.Ct. 711, 130 L.Ed.2d 618 (1995). Finally, this Court has repeatedly rejected this same claim. See Blanton v. Quarterman, 489 F.Supp.2d 621, 644-45 (W.D.Tex.2007)(rejecting complaint that a Texas capital sentencing jury must be instructed on the effect of a single hold-out juror); Martinez v. Dretke, 426 F.Supp.2d 403, 534-36 (W.D.Tex.2006)(relying on the Supreme Court’s holding in Jones v. United States to reject the same arguments raised by petitioner herein premised on the Supreme Court’s holdings in Mills v." }, { "docid": "83959", "title": "", "text": "F.3d 577, 587 (5th Cir.2002), cert. denied, 537 U.S. 1084, 123 S.Ct. 690, 154 L.Ed.2d 586 (2002); Ross v. Etelle, 694 F.2d 1008, 1012 (5th Cir.1983). The constitutional standard for evaluating the efficacy of punishment-phase jury instructions and special issues is well-settled: “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Abdul-Kabir v. Quarterman, — U.S. -, -, 127 S.Ct. 1654, 1674, 167 L.Ed.2d 585 (2007); Ayers v. Belmontes, — U.S.-,-, 127 S.Ct. 469, 474, 166 L.Ed.2d 334 (2006); Johnson v. Texas, 509 U.S. 350, 367, 113 S.Ct. 2658, 2669, 125 L.Ed.2d 290 (1993); Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990). “Although the reasonable likelihood standard does not require that the defendant prove that it was more likely than not that the jury was prevented from giving effect to the evidence, the standard requires more than a mere possibility of such a bar.” Johnson v. Texas, 509 U.S. at 367, 113 S.Ct. at 2669; Boyde v. California, 494 U.S. at 380, 110 S.Ct. at 1198. In evaluating the instructions, courts do not engage in a technical parsing of the relevant lan guage but instead approach the instructions the same way the jury would — with a “commonsense understanding of the instructions in the light of all that has taken place at the trial.” Johnson v. Texas, 509 U.S. at 368, 113 S.Ct. at 2669; Boyde v. California, 494 U.S. at 381, 110 S.Ct. at 1198. Because petitioner presented the state habeas court (and presents this Court) with no fact-specific allegations or evidence identifying any specific mitigating evidence which he claims his capital sentencing jury was unable to adequately consider, his fifteenth claim herein amounts to little more than a facial attack on the validity of the Texas capital sentencing scheme. However, even before the Texas Legislature amended the Texas capital sentencing scheme to direct capital sentencing juries to consider all of the evidence before it relating to a defendant’s offense, character and background, and personal moral" }, { "docid": "22232838", "title": "", "text": "mitigating evidence.” Id., at 114,102 S.Ct. at 877. Drinkard does not, and could not, argue that the Texas special issues standing alone prevented the jury from considering his intoxication at the time of the offense. Lackey v. Scott, 28 F.3d 486, 489 (5th Cir.1994) (“[T]he Texas sentencing scheme does not preclude the jury from giving mitigating effect to evidence of a defendant’s voluntary intoxication at the time of the offense”), cert. denied, — U.S. -, 115 S.Ct. 743, 130 L.Ed.2d 644 (1995); Cordova v. Collins, 953 F.2d 167, 170 (5th Cir.) (same), cert. denied, 502 U.S. 1067, 112 S.Ct. 959, 117 L.Ed.2d 125 (1992); Kelly v. Lynaugh, 862 F.2d 1126, 1133 (5th Cir.1988) (same), cert. denied, 492 U.S. 925, 109 S.Ct. 3263, 106 L.Ed.2d 608 (1989). Instead, he challenges the effect of the special instruction on the special issues. Drinkard argues that the challenged instruction on “temporary insanity caused by intoxication” prevented the jury from considering and giving effect to evidence of his intoxication if the jury concluded that it did not rise to the level of temporary insanity, evidence that the jury otherwise could have considered through the two special issues standing alone. The proper standard for reviewing a challenged jury instruction in the capital sentencing context is “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990). This “reasonable likelihood” standard does not require the petitioner to prove that the jury “more likely than not” interpreted the challenged instruction in an impermissible way; however, the petitioner must demonstrate more than “only a possibility” of an impermissible interpretation. Id. at 380, 110 S.Ct. at 1198. We must analyze the challenged jury instruction within the context of the overall jury charge. Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). “In evaluating the instructions, we do not engage in a technical parsing of this language of the instructions, but instead approach the instructions in" }, { "docid": "13172594", "title": "", "text": "to consider and give effect to “constitutionally relevant mitigating evidence.” See Buchanan v. Angelone, 522 U.S. 269, 276, 118 S.Ct. 757, 761, 139 L.Ed.2d 702 (1998) (“the sentencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence”); Johnson v. Texas, 509 U.S. 350, 367, 113 S.Ct. 2658, 2669, 125 L.Ed.2d 290 (1993) (holding the appropriate standard of review is whether there is a reasonable likelihood the challenged jury instructions were applied by the jury in a way that prevented the consideration of constitutionally relevant mitigating evidence); Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990) (holding the same). However, the Supreme Court has never declared information regarding state parole eligibility laws constitutes “mitigating evidence.” The defendant in Simmons argued his ineligibility for release on parole was a relevant consideration with regard to the propriety of his sentence because the evidence showed all of his victims had been elderly women and he was unlikely to encounter such persons if he were sentenced to serve a term of life imprisonment. Petitioner’s situation is significantly different. A review of pertinent Supreme Court case law reveals the Supreme Court has consistently employed the term “constitutionally relevant mitigating evidence” to describe evidence which tends to diminish a convicted capital murderer’s moral blameworthiness or lessen the reprehensible nature of the offense, i.e., evidence which relates to the defendant’s background or character or to the circumstances of the offense. See, e.g., Tennard v. Dretke, 542 U.S. 274, 285-87, 124 S.Ct. 2562, 2571-72, 159 L.Ed.2d 384 (2004) (holding impaired intellectual functioning is inherently mitigating); Penry v. Johnson, 532 U.S. 782, 796-97, 121 S.Ct. 1910, 1920, 150 L.Ed.2d 9 (2001) (holding jury instructions in a Texas capital sentencing proceeding did not adequately afford the jury a means of giving effect to mitigating evidence of the defendant’s mental retardation and history of childhood abuse); Buchanan v. Angelone, 522 U.S. at 278-79, 118 S.Ct. at 762-63 (holding jury instructions in a Virginia capital sentencing proceeding adequately permitted consideration of mitigating evidence of the defendant’s difficult family background" }, { "docid": "3684137", "title": "", "text": "428 F.3d 738, 750 (8th Cir.2005) (characterizing the weighing process as “the lens through which the jury must focus the facts that it has found” to reach its individualized determination), cert, denied, - U.S.-, 127 S.Ct. 433, 166 L.Ed.2d 307 (2006); see also Ford v. Strickland, 696 F.2d 804, 818 (11th Cir.1983); Gray v. Lucas, 685 F.2d 139, 140 (5th Cir.1982) (per curiam). The outcome of the weighing process is not an objective truth that is susceptible to (further) proof by either party. Hence, the weighing of aggrava-tors and mitigators does not need to be “found.” We hold, therefore, that the district court’s instructions were free from Apprendi error. Sampson has a residual argument: that the district court’s simultaneous and alternating references to both a personal notion of sufficiency and a reasonable doubt standard were confusing and inconsistent. We evaluate this argument by determining whether there exists a reasonable likelihood that the jury interpreted the instructions in a way that would violate the law. See Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990); see also Jones v. United States, 527 U.S. 373, 390, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999). Under this approach, a defendant cannot rely solely on how a single hypothetical juror might have interpreted a challenged instruction. See Boyde, 494 U.S. at 380, 110 S.Ct. 1190 (noting the “strong policy against retrials ... where the claimed error amounts to no more than speculation”). After careful assessment of the instructions as a whole, we reject Sampson’s contention that the challenged instruction is likely to have caused harmful juror confusion. Sampson places great emphasis on the language telling jurors that they could impose the death penalty if the aggravating factors “slightly outweigh[ed]” the mitigating factors. This phrase was followed immediately, however, by an assurance that jurors could refuse to vote for a death sentence “even if the government ha[d] proven to [them] that the aggravating factors greatly outweigh[ed] the mitigating factors.” The court further instructed that however jurors defined sufficiency, the prosecution had to convince them “beyond a reasonable doubt that the aggravating" }, { "docid": "21706380", "title": "", "text": "complaints about the allegedly narrow definition of “mitigating evidence” contained in the Texas capital sentencing scheme constitutes a procedural barrier to federal habeas review of same. D. Teague Foreclosure No federal court has held the Texas capital sentencing scheme’s definition of “mitigating evidence” deprives a criminal defendant of any right recognized by the United States Constitution. Scheanette v. Quarterman, 482 F.3d 815, 826-27 (5th Cir.2007); Beazley v. Johnson, 242 F.3d 248, 259-60 (5th Cir.), cert. denied, 534 U.S. 945, 122 S.Ct. 329, 151 L.Ed.2d 243 (2001). Thus, the non-retroactivity principle announced in Teague v. Lane precludes this Court from adopting the “new rule” advocated by petitioner in his thirtieth claim in this federal habeas corpus proceeding. E.AEDPA Review The Supreme Court has established the constitutional standard for evaluating the propriety of a jury instruction at the punishment phase of a capital murder trial as “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). The Supreme Court has consistently applied this standard to evaluate challenges to punishment-phase jury instructions. See Weeks v. Angelone, 528 U.S. 225, 226, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000) (emphasizing the Boyde test requires a showing of a reasonable likelihood, as opposed to a mere possibility, the jury construed the jury instructions to preclude its consideration of relevant mitigating evidence); Jones v. United States, 527 U.S. 373, 390 & n. 9, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999) (holding the same); Calderon v. Coleman, 525 U.S. 141, 146, 119 S.Ct. 500, 142 L.Ed.2d 521 (1998) (holding the same); Buchanan v. Angelone, 522 U.S. 269, 276, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998) (holding the same); Johnson v. Texas, 509 U.S. 350, 367, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993) (holding Boyde requires a showing of a reasonable likelihood the jury interpreted the jury instructions so as to preclude it from considering relevant mitigating evidence). This “reasonable likelihood” standard does not require the petitioner to prove the" }, { "docid": "12309131", "title": "", "text": "the murder during a robbery — had already been proven beyond a reasonable doubt in the guilt phase, Riley argues that a reasonable jury could have read the instruction to mean that it need not consider mitigation evidence. When reviewing a jury instruction that is claimed to impermissibly restrict a jury’s consideration of relevant evidence, a court must ask “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). If there is “only a possibility” of such inhibition, however, the challenge must fail. Id. Moreover, the challenged instructions “must be evaluated not in isolation but in the context of the entire charge.” Jones v. United States, 527 U.S. 373, 391, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999). When the jury charge is read as a whole, there is no reasonable likelihood that a jury could have understood it to preclude consideration of mitigating cir cumstances. At the close of the penalty hearing, the court again instructed the jury in terms that cleared up any ambiguity that might have been present in its earlier instruction: In conclusion, a sentence of death shall not be imposed unless you, the jury, find: (1) Beyond a reasonable doubt at least one statutory aggravating circumstance has been established; and (2) Unanimously recommend that a sentence of death be imposed after weighing all relevant evidence in aggravation and mitigation which bear upon the particular circumstances and details of the commission of the offense and the character and propensities of the offender. Should you fail to agree unanimously to either of these two matters, the Court shall sentence the defendant to life imprisonment without benefit of probation or parole. App. 438-40 (emphasis added). This instruction made it clear that a jury was required both to find at least one statutory aggravator and to weigh aggravating factors against mitigating factors in order to support a death sentence. This belies Riley’s argument that the jury was misled into believing that" }, { "docid": "1843065", "title": "", "text": "Supreme Court has consistently applied this standard to evaluate challenges to punishment-phase jury instructions. See Weeks v. Angelone, 528 U.S. 225, 226, 120 S.Ct. 727, 729, 145 L.Ed.2d 727 (2000) (emphasizing the Boyde test requires a showing of a reasonable likelihood, as opposed to a mere possibility, the jury construed the jury instructions to preclude its consideration of relevant mitigating evidence); Jones v. United States, 527 U.S. 373, 390 n. 9, 119 S.Ct. 2090, 2102-03 n. 9, 144 L.Ed.2d 370 (1999) (holding the same); Calderon v. Coleman, 525 U.S. 141, 146, 119 S.Ct. 500, 503, 142 L.Ed.2d 521 (1998) (holding the same); Buchanan v. Angelone, 522 U.S. 269, 276, 118 S.Ct. 757, 761, 139 L.Ed.2d 702 (1998) (holding the same); Johnson v. Texas, 509 U.S. 350, 367, 113 S.Ct. 2658, 2669, 125 L.Ed.2d 290 (1993) (holding Boyde requires a showing of a reasonable likelihood the jury interpreted the jury instructions so as to preclude it from considering relevant mitigating evidence). The fact the jury instructions might have been erroneous as a matter of state law does not, standing alone, furnish a basis for federal habeas corpus relief. Gilmore v. Taylor, 508 U.S. 333, 342, 113 S.Ct. 2112, 2118, 124 L.Ed.2d 306 (1993); Estelle v. McGuire, 502 U.S. 62, 71, 112 S.Ct. 475, 482, 116 L.Ed.2d 385 (1991); Marshall v. Lonberger, 459 U.S. 422, 438 n. 6, 103 S.Ct. 843, 853 n. 6, 74 L.Ed.2d 646 (1983). This “reasonable likelihood” standard does not require the petitioner to prove the jury “more likely than not” interpreted the challenged instruction in an impermissible way; however, the petitioner must demonstrate more than “only a possibility” of an impermissible interpretation. Johnson v. Texas, 509 U.S. at 367, 113 S.Ct. at 2669; Boyde v. California, 494 U.S. at 380, 110 S.Ct. at 1198. This Court must analyze the challenged language included in the jury charge within the context of the overall jury charge. Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). “In evaluating the instructions, we do not engage in a technical parsing of this language of the instructions," } ]

[ { "docid": "12575093", "title": "", "text": "SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and CYR, Circuit Judge. CYR, Circuit Judge. Plaintiff Karin Clarke appeals from a district court judgment dismissing her sexual harassment claim against her former employer, Kentucky Fried Chicken of California, Inc. (“KFC”), for failure to exhaust administrative remedies, and dismissing her related state-law tort claims on preemption grounds. We affirm the judgment. I BACKGROUND While employed by defendant KFC at a fast-food restaurant in Saugus, Massachusetts, Clarke was sexually harassed, physically assaulted, and subjected to attempted rape by other KFC employees. Clarke quit her job and initiated the present lawsuit in Massachusetts Superior Court, alleging sexual harassment, negligent and reckless infliction of emotional distress, and negligent hiring, retention and supervision. After removing the case to federal district court, see 28 U.S.C. §§ 1441, 1446; see also id. § 1332 (diversity jurisdiction), KFC filed a motion to dismiss all claims, see Fed.R.Civ.P. 12(b)(6), contending that the sexual harassment claim under Mass.Gen. L.Ann. ch. 214, § 1C, was barred for failure to exhaust mandatory administrative remedies before the Massachusetts Commission Against Discrimination (“MCAD”), see Mass. Gen.L. ch. 151B, § 5 (prescribing six-month limitation period for MCAD claims), § 9 (making section 5 procedure “exclusive”), and that Clarke’s common law tort claims were preempted by the Massachusetts Workers’ Compensation Act, see Mass.Gen.L. ch. 152, § 1 et seq. (Supp.1994). The motion to dismiss was granted in its entirety. Clarke v. Kentucky Fried Chicken of California, Inc., No. 94-11101-EFH (D.Mass. Aug. 17, 1994). II DISCUSSION A. Sexual Harassment Clarke first contends that the district court should not have dismissed her sexual harassment claim, because the “jurisdictional” clause in Mass.Gen.L.Ann. ch. 214, § 1C (1986) (“The superior court shall have jurisdiction in equity to enforce this right and to award damages.”) evinces a clear legislative intent to except such claims from compliance with the otherwise mandatory MCAD exhaustion requirement imposed on other employment-based discrimination claims under Massachusetts law. In order to place her contention in context, we examine pertinent case law and statutes, see infra APPENDIX at pp. (i)-(iii). 1. Fair Employment Practices Act, Mass.Gen.L.Ann. ch. 151B In" } ]

[ { "docid": "12594524", "title": "", "text": "“exclusivity” of Chapter 151B prevents Plaintiff from recovering, under a separate count, for damages stemming from the intentional infliction of emotional distress. To be sure, in Charland v. Muzi Motors, Inc., 417 Mass. 580, 631 N.E.2d 555 (1994), the Massachusetts Supreme Judicial Court stated that Chapter “151B provides the exclusive remedy for employment discrimination not based on preexisting tort law or constitutional protections.” Id., 631 N.E.2d at 559, 631 N.E.2d 555 (emphasis added). However, in 1996, the Supreme Judicial Court noted that common law claims such as negligent and intentional infliction of emotional distress are not barred by the exclusivity provision of Chapter 151B. See Green v. Wyman-Gordon Co., 422 Mass. 551, 664 N.E.2d 808, 813 (1996) (citing Comey v. Hill, 387 Mass. 11, 438 N.E.2d 811, 817 (1982)). Woodis also erroneously argues that the Workers Compensation Act precludes recovery against him for the negligent infliction of emotional distress. See Mass.Gen.Laws ch. 152. When a negligence-related injury appears to be covered by the Workers Compensation Act, the injured employee still may recover in court unless the injury occurred “in the course of his employment by the negligence of a fellow employee ... [who] was acting in the course of his employment.” Mulford v. Mangano, 418 Mass. 407, 636 N.E.2d 272, 274 (1994) (citations omitted). Similarly, an “intentional tort not related to the interests of the employer” is not preempted by the Act. See O’Connell v. Chasdi, 400 Mass. 686, 511 N.E.2d 349, 351 (1987). Here, there is not yet enough information to determine whether both Woodis and Plaintiff were acting within the course of their employment when the torts allegedly occurred, or if anything they were doing was related to the interests of Westfield Gage. Accordingly, Count VIII in its entirety must survive this motion to dismiss. V. CONCLUSION For the foregoing reasons, Woodis’ motion to dismiss is ALLOWED as follows: Counts I, II and V are dismissed insofar as they allege that Woodis, in his individual capacity, violated Title VII. In all other respects, Woodis’ motion to dismiss is DENIED. The parties are hereby ordered to appear for a" }, { "docid": "19202476", "title": "", "text": "Defendants. These are serious allegations. Despite its length, however, the Complaint fails to adequately allege facts to support the federal RICO and antitrust claims. Consequently, all federal causes of action will be dismissed, and the Court will decline to exercise supplemental jurisdiction over the remaining state law claims. II. BACKGROUND The Complaint tests the limits of Federal Rule of Civil Procedure 8(a)(2), which requires that a pleading contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” The Complaint describes the parties and their relationship to each other on pages two to ten. Pages ten through sixty-five contain the factual allegations, a sprawling tale of alleged fraud, subterfuge, backstabbing, and misdirection. Pages sixty-five through sixty-nine contain “general RICO allegations.” Pages seventy through ninety-one describe in twenty-four counts the claims made against the thirty-two Defendants. Page ninety-two sets forth a jury demand, and pages ninety-three through ninety-six are the table of contents. A. Causes of Action in Complaint The Complaint alleges violations in twenty-four counts. They are as follows: • Violations of federal law (Counts One through Twenty) • Prohibited activity in violation of RICO • 18 U.S.C. § 1962(a) (Count One) • 18 U.S.C. § 1962(b) (Count Two) • 18 U.S.C. § 1962(c) (Counts Three, Five, Seven, Nine, Eleven, Thirteen, Fifteen, and Seventeen) • 18 U.S.C. § 1962(d) (Counts Four, Six, Eight, Ten, Twelve, Fourteen, Sixteen, and Eighteen) • Prohibited activity in violation of the Sherman Act • Conspiracy to Violate the Sherman Act, 15 U.S.C. § 1 (Count Nineteen) • Illegal Boycott in Violation of the Sherman Act, 15 U.S.C. § 1 (Count Twenty) • Violations of Pennsylvania common law (Counts Twenty-One through Twenty-Four) • Breach of the Covenant of Good Faith and Fair Dealing (Count Twenty-One) • Commercial Disparagement (Count Twenty-Two) • Civil Conspiracy (Count Twenty-Three) • Negligent Infliction of Emotional Distress (Count Twenty-Four) B. Parties and Related Entities 1. Plaintiffs Plaintiff George Irish is a Pennsylvania real estate agent. (Doc. No. 1 at 2.) Plaintiff MIK, Inc. (“MIK”) is a Pennsylvania corporation. (Id.) Irish has been a shareholder of MIK" }, { "docid": "13450692", "title": "", "text": "be dismissed 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, 81 L.Ed.2d 59 (1984). Plaintiff is proceeding pro se in this case. The Court is mindful of the instruction that it should broadly construe normal pleading requirements when handling pro se submissions. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (holding pro se complaint “to less stringent standards than formal pleadings drafted by lawyers”). IV. DISCUSSION Plaintiff contends that defendants Barr and Miller “leaked” his January 1, 1998 letter addressed to Principal Travis. See Complaint at ¶ 42. Thereafter, according to plaintiff, defendants Barr and Miller and others “began to pressure” defendants School District of Philadelphia and School District Superintendent David Hornbeck to “terminate[] plaintiffs appointment on [Carver’s] Advisory Panel,” and plaintiff was so terminated. See Complaint at ¶¶ 43, 44. Also according to plaintiff, defendants Philadelphia Board of Education and Board President Floyd Alston reacted to pressure and engaged in their own conspiracy to remove plaintiff from his post as president of Carver’s Home and School Association, and plaintiff was so removed. See Complaint at ¶ 45. Plaintiff alleges seven causes of action, summarized as follows: Count 1 — an unlawful conspiracy pursuant to § 1985 of the Civil Rights Act of 1871; Count 2— intentional infliction of emotional distress under Pennsylvania law; Count 3 — negligent infliction of emotional distress under Pennsylvania law; Count 4 — defamation of character under Pennsylvania law; Count 5 — deprivation of constitutional rights guaranteed by the First and Fourteenth Amendments of the United States Constitution; Count 6 — violations of § 1983 of the Civil Rights Act of 1871; and Count 7 — ’invasion of privacy under Pennsylvania law. A. Counts 2, 3, k & 7 — Municipal Liability for State Law Claims Plaintiff alleges several state law claims in Counts 2 (intentional infliction of emotional distress), 3 (negligent infliction of emotional distress), 4 (defamation of character) &" }, { "docid": "3006020", "title": "", "text": "§ 111, the plaintiff must allege that the defendants interfered with their rights ‘by threats, intimidation, or coercion.’ ” Id. at 711 (citations omitted). The plaintiff has failed to allege such threats, intimidation, or coercion on the part of the City of Boston. As the court noted in Hathaway v. Stone, “even assuming the City ... failed to train, discipline, or supervise its officers, such a failure did not involve threats, intimidation or coercion by the City.” Id. Accordingly, it is the recommendation of this court that plaintiffs’ claim against the City of Boston pursuant to Mass.Gen.L. ch. 12, § 111 should also be dismissed for failure to state a claim pursuant to Fed.R.Civ. 12(b)(6). B. Count 5 Count Five alleges claims of assault and battery, false arrest and imprisonment, malicious prosecution, abuse of process, intentional infliction of emotional distress, conspiracy and negligence. As discussed above, these claims are governed by state law. In addition, as also stated above, the city may not be held liable for the intentional torts of its employees. This court reads this count as asserting these claims based upon the actions of the officers that occurred on the numerous occasions that the plaintiff was stopped and upon the alleged conspiracy. Accordingly, based upon the well recognized principle of law that a municipality cannot be sued for the intentional torts of its employees, this court recommends that defendant City of Boston’s motion to dismiss be allowed with respect to the following claims set forth in Count Five of the complaint: assault and battery; false arrest and imprisonment; and intentional infliction of emotional distress. This court also recommends dismissal of the claim of conspiracy for the reasons set forth above in section 1(B) of this Report and Recommendation. This court does not, however, recommend that the defendant City of Boston’s motion be allowed with respect to the claim of negligence asserted against the defendant City of Boston in Count Five of the complaint. As more fully discussed in part 1(C) of this Report and Recommendation, the municipality is the proper party to sue pursuant to the Massachusetts" }, { "docid": "13450693", "title": "", "text": "Board President Floyd Alston reacted to pressure and engaged in their own conspiracy to remove plaintiff from his post as president of Carver’s Home and School Association, and plaintiff was so removed. See Complaint at ¶ 45. Plaintiff alleges seven causes of action, summarized as follows: Count 1 — an unlawful conspiracy pursuant to § 1985 of the Civil Rights Act of 1871; Count 2— intentional infliction of emotional distress under Pennsylvania law; Count 3 — negligent infliction of emotional distress under Pennsylvania law; Count 4 — defamation of character under Pennsylvania law; Count 5 — deprivation of constitutional rights guaranteed by the First and Fourteenth Amendments of the United States Constitution; Count 6 — violations of § 1983 of the Civil Rights Act of 1871; and Count 7 — ’invasion of privacy under Pennsylvania law. A. Counts 2, 3, k & 7 — Municipal Liability for State Law Claims Plaintiff alleges several state law claims in Counts 2 (intentional infliction of emotional distress), 3 (negligent infliction of emotional distress), 4 (defamation of character) & 7 (invasion of privacy) against two municipal entities — the School District of Philadelphia and the Philadelphia Board of Education. These claims for intentional torts against municipal entities are barred by Pennsylvania law. Plaintiff asserts the same state law claims against defendants Hornbeck, Alston, Barr and Miller in their official capacities as municipal employees. All such claims are treated as claims against municipal entities and are barred under Pennsylvania law. The Political Subdivision Tort Claims Act (the “Tort Claims Act”) grants to municipal agencies immunity from liability for all state law tort claims. See 42 Pa.C.S.A. § 8541 et. seq. (Purdon’s 1998 and Supp. 2000); Martin v. City of Philadelphia, et al., No. 99-543, 2000 WL 1052150 (E.D.Pa. July 24, 2000); Wakshul v. City of Philadelphia, 998 F.Supp. 585 (E.D.Pa.1998). The Tort Claims Act provides that “no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.” 42 Pa.C.S.A. § 8541." }, { "docid": "9783593", "title": "", "text": "MEMORANDUM AND ORDER FRANK A. KAUFMAN, Senior District Judge. (1) Reference is hereby made to Defendants’ Motion to Dismiss or in the Alterna tive Motion for Summary Judgment with regard to plaintiffs Complaint and Amended Complaint. Defendants’ motion with regard to plaintiffs original Complaint was filed on October 15, 1996, and defendants’ motion with regard to plaintiffs Amended Complaint was filed on January 3, 1997. Plaintiffs Amended Complaint is substantially similar to her original Complaint with the singular addition of a state law cause of action for wrongful discharge. Additionally, this Court has read and considered the plaintiffs Motion for Voluntary Dismissal of her state law claims, and the defendant’s opposition to that motion. For the reasons stated in this Memorandum and Order, this Court will grant the defendants’ motion to dismiss each and all of plaintiffs federal claims, and will not exercise supplemental jurisdiction over the remaining state law claims of plaintiff. Consequently, this Courts grants the plaintiffs Motion for Voluntary Dismissal. (2) Plaintiff, Susan Campbell (“Campbell”) filed her original Complaint on September 9, 1996 in which she alleged both federal and state claims against Jeffery Masten (“Mas-ten”) and the Wildlife International, Ltd. (‘Wildlife”), her former employer. In particular, plaintiff brings, in Counts One, Two and Three of her Complaint, claims of sex discrimination, quid pro quo sexual harassment, and hostile work environment discrimination, solely against Wildlife, and all based on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). This Court’s jurisdiction for this suit against Wildlife and Masten is based on those Title VII claims. Further, in Counts Four, Five, Six, Seven, Eight, and Nine, plaintiff alleges that both defendants participated in conduct that constitute the state law claims of intentional infliction of emotional distress, negligent selection, supervision and retention, false light, tortious interference with prospective advantage, wrongful discharge, and civil conspiracy respectively. (3) The record in this case contains only one item other than pleadings, ie., the affidavit of Joann B. Beavers, Campbell’s supervisor, offered by the defendants in connection with their defense of plaintiffs tortious interference claim." }, { "docid": "6665532", "title": "", "text": "] every person ... employed in any office, position or post in the state'government....” Conn. Gen. Stat. Ann. § 4-141. The Complaint alleges that each of the State Defendants was an employee of either DOC or DPS at all times relevant to the Complaint. Therefore, they are state officers or employees as defined by § 4-141, and § 4-165 applies to them. The Connecticut Supreme Court has interpreted § 4-165 to mean that “state employees may not be held personally liable for their negligent actions performed within the scope of their employment.” Miller v. Egan, 265 Conn. 301, 319, 828 A.2d 549 (2003); see also Hamilton v. Lajoie, 660 F.Supp.2d 261, 266 (D.Conn.2009) (“[I]f the Defendants acted wantonly, they may be held liable for committing some other tort, but not for negligence.... Insofar as [the Plaintiff] contends that the Defendants acted negligently ... § 4-165(a) bars recovery.”). In Count Six, the Complaint alleges that Lantz, Braren and O’Connor acted negligently in contracting with CSI and supervising CSI operations at the Drapelick Center. Such conduct clearly falls within scope of their employment as DOC officials. ' Moreover, the Complaint asserts only that this conduct was negligent, and not that it was wanton or willful. Because Lantz, Braren and O’Connor may not be held personally liable for negligent performance of their duties on behalf of the State, Count Six fails to state a claim against the State Defendants for which relief can be granted. Therefore, Count Six is being dismissed with respect to the State Defendants. G. Count Seven: Intentional Infliction of Emotional Distress Count Seven asserts a claim for intentional infliction of emotional distress. To state a claim for intentional infliction of emotional distress, a plaintiff must allege: “(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiffs distress; and (4) that the emotional distress sustained by the plaintiff was severe....” Carrol v. Allstate Ins." }, { "docid": "12594523", "title": "", "text": "summary judgment to defendant named in MCAD complaint but not as a respondent); Chapin v. Univ. of Mass. at Lowell, 977 F.Supp. 72, 76-78 (D.Mass.1997) (denying motion to dismiss where defendant, although not named in the ftlCAD charge, was sufficiently identified by title and had notice of the complaint as well as an opportunity to conciliate). For the foregoing reasons, the court believes that Plaintiff has sufficiently stated claims against Woodis under Chapter 151B. Accordingly, the motion to dismiss Counts IV, V (insofar as it relates to Chapter 151B) and III (insofar as it may be directed at Woodis individually) will be denied. C. Emotional Distress As a final matter, Woodis asserts that Count VIII, claiming both intentional and negligent infliction of emotional distress, cannot be maintained against him as a separate cause of action. It is unclear from Plaintiffs opposition whether she has abandoned Count VIII insofar as it claims negligent infliction of emotional distress. The court will therefore address Count VIII as claiming both types of harm. Woodis mistakenly argues that the purported “exclusivity” of Chapter 151B prevents Plaintiff from recovering, under a separate count, for damages stemming from the intentional infliction of emotional distress. To be sure, in Charland v. Muzi Motors, Inc., 417 Mass. 580, 631 N.E.2d 555 (1994), the Massachusetts Supreme Judicial Court stated that Chapter “151B provides the exclusive remedy for employment discrimination not based on preexisting tort law or constitutional protections.” Id., 631 N.E.2d at 559, 631 N.E.2d 555 (emphasis added). However, in 1996, the Supreme Judicial Court noted that common law claims such as negligent and intentional infliction of emotional distress are not barred by the exclusivity provision of Chapter 151B. See Green v. Wyman-Gordon Co., 422 Mass. 551, 664 N.E.2d 808, 813 (1996) (citing Comey v. Hill, 387 Mass. 11, 438 N.E.2d 811, 817 (1982)). Woodis also erroneously argues that the Workers Compensation Act precludes recovery against him for the negligent infliction of emotional distress. See Mass.Gen.Laws ch. 152. When a negligence-related injury appears to be covered by the Workers Compensation Act, the injured employee still may recover in court unless" }, { "docid": "6665533", "title": "", "text": "falls within scope of their employment as DOC officials. ' Moreover, the Complaint asserts only that this conduct was negligent, and not that it was wanton or willful. Because Lantz, Braren and O’Connor may not be held personally liable for negligent performance of their duties on behalf of the State, Count Six fails to state a claim against the State Defendants for which relief can be granted. Therefore, Count Six is being dismissed with respect to the State Defendants. G. Count Seven: Intentional Infliction of Emotional Distress Count Seven asserts a claim for intentional infliction of emotional distress. To state a claim for intentional infliction of emotional distress, a plaintiff must allege: “(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiffs distress; and (4) that the emotional distress sustained by the plaintiff was severe....” Carrol v. Allstate Ins. Co., 262 Conn. 433, 443, 815 A.2d 119 (2003). Conduct is extreme and outrageous if it “go[es] beyond all possible bounds of decency, and [is] regarded as’ atrocious, and utterly intolerable in a civilized community.” Id. “Whether a defendant’s conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine.” Appleton v. Bd. of Educ. of Town of Stonington, 254 Conn. 205, 210, 757 A.2d 1059 (2000). Although Count Seven is purportedly brought against all defendants, no theory of liability for intentional infliction of emotional distress is put forward as to the DPS Defendants. 1. Direct Liability of Lindley and Lantz In Count Seven, the plaintiffs allege that Lindley conspired and aided and abetted assault. They further allege that Lindley’s conduct in doing so “exceeded all bounds tolerated by decent society” and that “her conduct was calculáted to cause, and did cause, mental distress to Plaintiffs of a very serious nature.” (Compl. ¶ 244.) As discussed in section III.E.l, the plaintiffs fail to allege" }, { "docid": "16209916", "title": "", "text": "M.G.L. e. 151B); Clarke v. Kentucky Fried Chicken of Calif., Inc., 57 F.3d 21, 23-24 (1st Cir.1995) (any claim of sexual harassment in the workplace must be brought pursuant to the procedures of M.G.L. c. 151B, or plaintiff forfeits any entitlement to judicial review). Since plaintiffs did not file their complaints pursuant to M.G.L. e. 151B, their respective claims of wrongful termination, civil conspiracy, intentional interference with contractual relations and violations of M.G.L. c. 12, § 111, all of which are grounded in their general claims of sexual harassment, are barred by the exclusivity provision of M.G.L. c. 151B and must be dismissed. The Worker’s Compensation Act M.G.L. e. 152 provides the- exclusive remedy by which an employee can recover damages for personal injuries sustained in the course of and arising out of his or her employment. Green v. Wyman-Gordon Co., 422 Mass. 551, 558, 664 N.E.2d 808, 813 (1996) (exclusivity provision of M.G.L. ch.152 barred common-law claims for intentional and negligent infliction of emotional distress); Doe v. Purity Supreme, Inc., 422 Mass. 563, 565, 664 N.E.2d 815, 818 (1996) (plaintiffs claims of negligence, assault and battery and intentional and negligent infliction of emotional distress arising from sexual harassment and rape are barred by the exclusivity provision of Worker’s Compensation Act, M.G.L. c. 152); Foley v. Polaroid Corp., 381 Mass. 545, 548-49, 413 N.E.2d 711, 713-14 (1980) (intentional infliction of emotional distress barred by exclusivity provision of M.G.L. c. 152). M.G.L. e. 152, § 24 allows employees to recover for [personal] injuries which are shown to have arisen out of and in the course of employment. Personal injuries are defined as “mental or emotional disabilities where a significant contributing cause of such disability [is] an event or series of events occurring within the employment.” Mass. Gen. L. ch. 152, § 1(7A). Since all of the personal injuries for which plaintiffs seek to recover “arose out of’ and were “in the course of’ employment, plaintiffs’ claims of intentional infliction of emotional distress and assault and battery are barred by the exclusivity provision of M.G.L. c. 152 and therefore dismissed. The Worker’s" }, { "docid": "13203818", "title": "", "text": "refueling” procedure, see Compl. at 12; and (4) Negligent Supervision, see Compl. at 13. Concerning Dyn-Corp’s conduct in returning Ross’s remains to his family and communicating with the family about the circumstances of Ross’s death, the complaint charges both Intentional Infliction of Emotional Distress (Count VII), see Compl. at 17, and Negligent Infliction of Emotional Distress (Count VIII), see Compl. at 18. On January 27, 2003, DynCorp moved to dismiss the plaintiffs’ complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state claims on which relief may be granted, arguing: (1) that the plaintiffs’ negligence-based claims, in the aggregate, are barred by the exclusive remedy provisions of the federal Defense Base Act, which incorporates the federal Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901 et seq.; and (2) that the plaintiffs have failed to allege sufficient facts to state claims for intentional or negligent infliction of emotional distress. By Order issued September 30, 2003, this Court denied the defendants’ amended motion to dismiss without prejudice and authorized the parties to conduct ninety days of discovery, “limited to discovering facts necessary to determine whether this ease may proceed in this Court.” Order, issued Sept. 30, 2003, Docket No. 11. This Order anticipated the filing of a motion for summary judgment on the issue of whether the bulk of the plaintiffs’ claims are barred by the Defense Base Act, and held in abeyance the Court’s disposition of the defendants’ arguments in favor of dismissal of the plaintiffs’ emotional distress claims by denying them without prejudice. Predictably, the defendants filed the present motion for summary judgment on April 5, 2004. Therein, the defendants reinstate their argument that Ross’s employment pursuant to the Contract falls within the provisions of the Defense Bases Act, which, by its incorporation of the Longshore Act, makes worker’s compensation payments the sole remedy available to the plaintiffs for Ross’s death. Additionally, the defendants renew their argument that the plaintiffs fail to sufficiently state claims for intentional and negligent infliction of emotional distress, warranting dismissal of those claims under Rule 12(b)(6). Alternatively, the defendants contend that" }, { "docid": "16528895", "title": "", "text": "intent of falsely accusing Tennaro of improper acts so that Tennaro would be wrongfully terminated” and that “[the] individual defendants, acting together, possessed and exerted coercion in bringing these false charges against Tennaro.” Complaint at ¶ 26 and 27. “Civil conspiracy is a very limited cause of action in Massachusetts.” Jurgens v. Abraham, 616 F.Supp. 1381,1386 (D.Mass. 1985). In order to prevail on a claim of civil conspiracy, a plaintiff must prove that “defendants, acting in unison, had ‘some peculiar power of coercion’ over plaintiff that they would not have had if acting independently.” Id. (quoting Fleming v. Dane, 304 Mass. 46, 22 N.E.2d 609, 611 (1939)). Evidence of mere joint tortious activity by defendants is insufficient to prove civil conspiracy. Norman v. Brown, Todd & Heybum, 693 F.Supp. 1259, 1265 (D.Mass.1988). Tennaro has failed to produce evidence that the individual defendants, by virtue of joint activity, possessed any peculiar power of coercion over him. Thus, defendants’ motion for summary judgment as to Count III will be allowed insofar as it alleges civil conspiracy. D. Intentional and Negligent Infliction of Emotional Distress Count IV(1) alleges that M & G (and Ryder) intentionally and/or negligently inflicted emotional distress on Tennaro by failing to conduct a proper investigation of the facts underlying his Complaint and by failing to protect him from the wrongful and intentional acts of its agents. M & G contends that both the intentional and negligent infliction of emotional distress claims are barred by the exclusivity provision of the Massachusetts workers’ compensation statute. See M.G.L. c. 152, § 24. M.G.L. c. 152, § 24 provides, in pertinent part: An employee shall be held to have waived his right of action at common law or under the law of any other jurisdiction in respect to an injury that is compensable under this chapter, to recover damages for personal injuries, if he shall not have given his employer ... written notice that hfe claimed such right ... Tennaro does not allege that he notified M & G of his intention to retain his common law rights. Thus, Tennaro has waived his" }, { "docid": "13203817", "title": "", "text": "Panama on Thursday, August 8, 2002 — seven days after the day he died. See Def.’s Stmt., ¶23. Throughout the time-period during which DynCorp was attempting to arrange for transportation of Ross’s remains, “DynCorp personnel were in regular contact with plaintiffs Michael Ross and Ann Ross via telephone and email.” Id. ¶ 31. Additionally, the State Department conducted an investigation of Ross’s accident and subsequently prepared an accident investigation report that was delivered to DynCorp in October, 2003. Id. ¶¶ 35-36. The plaintiffs filed this suit against Dyn-Corp on December 6, 2002. Their complaint contains the following counts arising out of Ross’s injury and subsequent death: (1) Negligence, see Compl. at 9; (2) Negligence in the Conduct of an Ultrahazardous Activity, with the “ultrahazardous activity” being the so-called “hot refueling” procedure, see Compl. at 10; (3) Negligence Per Se, alleging that DynCorp violated its internal “regulations and policies and/or those of the U.S. State Department Operation Directives for Columbia, the U.S. Federal Aviation Authority, and/or industry standards” by allowing Ross to participate in the “hot refueling” procedure, see Compl. at 12; and (4) Negligent Supervision, see Compl. at 13. Concerning Dyn-Corp’s conduct in returning Ross’s remains to his family and communicating with the family about the circumstances of Ross’s death, the complaint charges both Intentional Infliction of Emotional Distress (Count VII), see Compl. at 17, and Negligent Infliction of Emotional Distress (Count VIII), see Compl. at 18. On January 27, 2003, DynCorp moved to dismiss the plaintiffs’ complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state claims on which relief may be granted, arguing: (1) that the plaintiffs’ negligence-based claims, in the aggregate, are barred by the exclusive remedy provisions of the federal Defense Base Act, which incorporates the federal Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901 et seq.; and (2) that the plaintiffs have failed to allege sufficient facts to state claims for intentional or negligent infliction of emotional distress. By Order issued September 30, 2003, this Court denied the defendants’ amended motion to dismiss without prejudice and authorized the parties to conduct" }, { "docid": "21982173", "title": "", "text": "Any other reading of the Second Amended Complaint is a misconstruction, wholly unintended by the plaintiffs.” (Pis. Opp’n at 9.) “The notice pleading standard of the Federal Rules of Civil Procedure ‘requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to give the defendant fair notice of what the ... claim is and the ground upon which it rests.’ ” Matson, 631 F.3d at 72 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Fed. R.Civ.P. 8(a))). With respect to the claims for intentional infliction of emotional distress (Count Three) and sexual assault and battery of a child (Count Six), plaintiffs’ Second Amended Complaint falls short of the fair pleading standard given its lack of clarity and internal inconsistencies. In the Second Amended Complaint, after each heading for each of plaintiffs’ causes of action, plaintiffs included a bold-highlighted parenthetical specifying the defendants “against” whom each claim is asserted. With respect to the bold-type headings above plaintiffs’ claims for intentional infliction of emotional distress (Count Three), negligent infliction of emotional distress (Count Four), and sexual assault and battery of a child (Count Six), the parentheticals specify that such claims are “Against the CITY of NEW YORK and NYCBE” and each heading also includes the words “Respondeat Superior.” (See Compl. at 10-12.) With respect to plaintiffs’ claims of sexual harassment in violation of the New York State Human Rights Law in Count Five, the parenthetical specifies that such claim is “Against All Defendants” and does not include “Respondeat Superior” in the heading. (Id. at 11.) After reviewing both the headings of each count and the substance of the state law allegations contained in the Second Amended Complaint, the court finds that Mr. Benavides has not been provided fair notice that Counts Three and Six allege claims against him. Indeed, the claims for intentional infliction of emotional distress (Count Three), negligent infliction of emotional distress (Count Four), and sexual assault and battery of a child (Count Six) allege that the City, the NYCDOE," }, { "docid": "9783594", "title": "", "text": "1996 in which she alleged both federal and state claims against Jeffery Masten (“Mas-ten”) and the Wildlife International, Ltd. (‘Wildlife”), her former employer. In particular, plaintiff brings, in Counts One, Two and Three of her Complaint, claims of sex discrimination, quid pro quo sexual harassment, and hostile work environment discrimination, solely against Wildlife, and all based on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). This Court’s jurisdiction for this suit against Wildlife and Masten is based on those Title VII claims. Further, in Counts Four, Five, Six, Seven, Eight, and Nine, plaintiff alleges that both defendants participated in conduct that constitute the state law claims of intentional infliction of emotional distress, negligent selection, supervision and retention, false light, tortious interference with prospective advantage, wrongful discharge, and civil conspiracy respectively. (3) The record in this case contains only one item other than pleadings, ie., the affidavit of Joann B. Beavers, Campbell’s supervisor, offered by the defendants in connection with their defense of plaintiffs tortious interference claim. Therefore, the Court will evaluate each of plaintiffs federal claims against the standards applicable to a motion to dismiss. When considering the merits of a motion to dismiss a complaint for failure to state a claim, the district court is required to treat all well-pleaded allegations as true. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1848-49, 23 L.Ed.2d 404 (1969). The district court should not dismiss a complaint for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts which would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). This Court gave the plaintiff an opportunity to make a case for discovery in order to resist the defendants’ motions. The plaintiff has declined to request discovery, and has requested that all of the state claims in this case be dismissed without prejudice. Accordingly, this Court will evaluate defendants’ motions with regard to plaintiffs federal claims on the basis of the record" }, { "docid": "18280607", "title": "", "text": "of the complaint) and therefore her claim is time-barred. 6. Count 9: Intentional Infliction of Emotional Distress For a successful claim of intentional infliction of emotional distress, a plaintiff must demonstrate “(1) ‘extreme and outrageous’ conduct on the part of the defendant which (2) intentionally or recklessly (3) causes the plaintiff ‘severe emotional distress.’ ” Sere v. Group Hospitalization, Inc., 443 A.2d 33, 37 (D.C.1982). In the instant case, plaintiff has failed to show either of the required elements of extreme and outrageous conduct or severe emotional distress. Plaintiff failed to specify what conduct by the defendants was extreme and outrageous. Additionally, plaintiff has not alleged an injury that amounts to severe emotional distress because she was not prevented from obtaining her law degree or working as a result of the alleged surveillance. Accordingly, plaintiffs claim for intentional infliction of emotional distress must be dismissed for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6). 7. Count 10: Civil Conspiracy In the District of Columbia, a plaintiff must prove four necessary elements to make a claim for civil conspiracy: “(1) an agreement between two or more persons; (2) to participate in an unlawful act, or a lawful act in an unlawful manner; (3) an injury caused by an unlawful overt act performed by one of the parties to the agreement; (4) which overt act was done pursuant to and in furtherance of the common scheme.” Halberstam v. Welch, 705 F.2d 472, 477 (D.C.Cir.1983). Furthermore, “there is no recognized independent tort action for civil conspiracy in the District of Columbia” because a claim for civil conspiracy must be initially based on an underlying tortious act. Id. at 479. In the instant case, plaintiff has not alleged with any specificity or particularity that there was an underlying tort or a conspiracy to warrant a claim for civil conspiracy. Therefore, plaintiffs claim for civil conspiracy must be dismissed for failure to state a claim upon which relief can be granted under Rule 12(b)(6). 8.Count 11: Invasion of Privacy Plaintiffs claim for invasion of privacy must be dismissed" }, { "docid": "3006021", "title": "", "text": "reads this count as asserting these claims based upon the actions of the officers that occurred on the numerous occasions that the plaintiff was stopped and upon the alleged conspiracy. Accordingly, based upon the well recognized principle of law that a municipality cannot be sued for the intentional torts of its employees, this court recommends that defendant City of Boston’s motion to dismiss be allowed with respect to the following claims set forth in Count Five of the complaint: assault and battery; false arrest and imprisonment; and intentional infliction of emotional distress. This court also recommends dismissal of the claim of conspiracy for the reasons set forth above in section 1(B) of this Report and Recommendation. This court does not, however, recommend that the defendant City of Boston’s motion be allowed with respect to the claim of negligence asserted against the defendant City of Boston in Count Five of the complaint. As more fully discussed in part 1(C) of this Report and Recommendation, the municipality is the proper party to sue pursuant to the Massachusetts Tort Claims Act in the case of negligence by a municipal employee. In addition, because this court has determined that the employee’s failure to intervene on behalf of the plaintiff Gross may have resulted in deliberate indifference on the part of the defendant officer, it is clear that a claim based upon the negligence of that officer cannot be dismissed for failure to state a claim. C. Count 6 Count Six alleges a claim pursuant to Mass.Gen.L. ch. 12 § 111. For the reasons set forth supra in part 11(A) of this Report and Recommendation, it is the recommendation of this court that the defendant City of Boston’s motion to dismiss Count Six of the complaint be denied. D. Count 7 Count Seven alleges a claim for loss of consortium on behalf of the plaintiff Aaron Gross’ wife, Jacqueline Gross. A claim of loss of consortium, as discussed in greater detail above, may be based upon a loss of affection, love, companionship and sexual enjoyment due to negligently caused injury to the other spouse. “When" }, { "docid": "16209917", "title": "", "text": "664 N.E.2d 815, 818 (1996) (plaintiffs claims of negligence, assault and battery and intentional and negligent infliction of emotional distress arising from sexual harassment and rape are barred by the exclusivity provision of Worker’s Compensation Act, M.G.L. c. 152); Foley v. Polaroid Corp., 381 Mass. 545, 548-49, 413 N.E.2d 711, 713-14 (1980) (intentional infliction of emotional distress barred by exclusivity provision of M.G.L. c. 152). M.G.L. e. 152, § 24 allows employees to recover for [personal] injuries which are shown to have arisen out of and in the course of employment. Personal injuries are defined as “mental or emotional disabilities where a significant contributing cause of such disability [is] an event or series of events occurring within the employment.” Mass. Gen. L. ch. 152, § 1(7A). Since all of the personal injuries for which plaintiffs seek to recover “arose out of’ and were “in the course of’ employment, plaintiffs’ claims of intentional infliction of emotional distress and assault and battery are barred by the exclusivity provision of M.G.L. c. 152 and therefore dismissed. The Worker’s Compensation Act, however, “does not cover injuries from common law torts such as defamation [ ], which are intended to protect against harm other than injury to mind or body.” Wymart-Gordon, 422 Mass, at 560, 664 N.E.2d at 814. “[D]efamation, being injury to reputation, irrespective of any physical or mental harm, was not the type of personal injury contemplated by M.G.L. c. 152.” Foley, 381 Mass, at 552, 413 N.E.2d at 715. Thus plaintiffs’ defamation count is not barred by either M.G.L. c. 152 or M.G.L. c. 151B. Nevertheless, the defamation claim must be dismissed because plaintiffs have failed to state a claim. The Massachusetts Supreme Judicial Court has stated that defamation traditionally is a disfavored action, and that “courts have applied a stricter standard to complaints for defama tion by requiring defamation plaintiffs to plead the elements of their claims with specificity in order to survive a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).” See Eyal v. Helen Broadcasting Corp., 411 Mass. 426, 432 n. 7, 583 N.E.2d 228, 231 n. 7 (1991); Phantom" }, { "docid": "21982171", "title": "", "text": "The court does not discern, the evidence in the record does not support, and the plaintiffs have not adequately stated, any other violations of Ms. Doe’s constitutional rights. Accordingly, summary judgment is denied as to the plaintiffs’ Section 1983 claim against Mr. Benavides in his individual capacity for violations of Ms. Doe’s constitutional rights to bodily integrity and to an educational environment free of sexual harassment. D. Plaintiffs’ State Law Claims Plaintiffs’ Second Amended Complaint alleges six state law claims: (1) intentional infliction of emotional distress against the City and the NYCDOE (Count Three); (2) negligent infliction of emotional distress against the City and the NYCDOE (Count Four); (3) sexual harassment in violation of New York State Human Rights Laws pursuant to New York Executive Law § 296 against all defendants (Count Five); (4) sexual assault and battery of a child against the City and the NYCDOE (Count Six); (5) negligent hiring against the City and the NYCDOE (Count Seven), and (6) negligent retention against the City and the NYCDOE (Count Eight). {See Compl. ¶¶ 30-60.) As discussed above, because the City cannot be liable for the acts of the NYCDOE or its employees, any claims brought against the City and the NYC-DOE shall be construed to be only against the NYCDOE. To the extent plaintiffs were intending to sue the City for the acts of SCI and Investigator Jenkins, the merits of such claims are discussed further below. There is, however, a dispute between the plaintiffs and Mr. Benavides on whether the Second Amended Complaint adequately pleaded claims of intentional infliction of emotional distress (Count Three), negligent infliction of emotional distress (Count Four), and sexual assault and battery of a child against Mr. Benavides (Count Six). Mr. Benavides did not move for summary judgment with respect to these three claims, apparently because he did not believe that plaintiffs asserted those claims against him. (See Benavides Mem. at 2; Benavides Reply at 7.) Plaintiffs, however, argue that a “natural reading and inference of the plaintiffs’ Second Amended Complaint asserts such tort liability against Benavides and demands damages as a result." }, { "docid": "21982174", "title": "", "text": "plaintiffs’ claims for intentional infliction of emotional distress (Count Three), negligent infliction of emotional distress (Count Four), and sexual assault and battery of a child (Count Six), the parentheticals specify that such claims are “Against the CITY of NEW YORK and NYCBE” and each heading also includes the words “Respondeat Superior.” (See Compl. at 10-12.) With respect to plaintiffs’ claims of sexual harassment in violation of the New York State Human Rights Law in Count Five, the parenthetical specifies that such claim is “Against All Defendants” and does not include “Respondeat Superior” in the heading. (Id. at 11.) After reviewing both the headings of each count and the substance of the state law allegations contained in the Second Amended Complaint, the court finds that Mr. Benavides has not been provided fair notice that Counts Three and Six allege claims against him. Indeed, the claims for intentional infliction of emotional distress (Count Three), negligent infliction of emotional distress (Count Four), and sexual assault and battery of a child (Count Six) allege that the City, the NYCDOE, SCI, and Investigator Jenkins adopted, approved, and ratified Mr. Benavides’ actions by their own omissions and misconduct. Count Three’s intentional infliction of emotional distress claim does not specifically allege that Mr. Benavides’ own conduct caused plaintiffs’ harm. (Id. ¶¶ 37, 40, 50.) Notwithstanding the heading of Count Four stating that the claim for negligent infliction of emotional distress is brought “Against the City of New York and the NYCBE,” Count Four does explicitly name Mr. Benavides in its allegations of negligent infliction of emotional distress, and in a conclusory fashion, alleges that he and others engaged in negligent conduct. (Id. ¶¶ 38-40.) Accordingly, the court agrees with Mr. Benavides that plaintiffs failed to name him and state claims of intentional infliction of emotional distress (Count Three) and sexual assault and battery of a child (Count Six) against Mr. Benavides in his individual capacity. To the extent Ms. Doe wishes to amend the Second Amended Complaint to properly bring such claims against Mr. Benavides pursuant to Federal Rule of Civil Procedure 15, instructions are provided in" } ]

[ { "docid": "2041128", "title": "", "text": "v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566 (1935). A revocation hearing is not a trial requiring an adversary proceeding. The right to counsel may not be built upon the privilege of probation. The sentencing process has ended; no substantial right of the defendant is in jeopardy. The Judge is within his province ; he may take what he has given using sound judgment in exercising the discretionary powers inherent in our Judicial system. The Petitioner's rights under the Federal Probation Act are derived from legislative mandate, and not from the Constitution of the United States. Brown v. Warden, supra. The Comptroller General’s office in construing the Federal Probation and Criminal Justice Acts stated that: “The proceedings to determine if a probation should be revoked and a sentence imposed is a hearing to determine whether an offender had forfeited the privilege of conditional liberty provided by this chapter and the proceedings are not an extension of the original criminal action entitling the offender to legal representation as a constitutional right; therefore, the Criminal Justice Act of 1964, Sec. 3006A of this title, providing for representation of defendants financially unable to obtain an adequate defense does not apply to a hearing for the purpose of revoking a probational privilege and the fact that an order revoking a probation is an appealable final judgment does not entitle the offender to counsel as a matter of right under U.S.C.A.Const. Amend. 6 or under Rule 44 of the Federal Rules of Criminal Procedure, the appeal relating back to the original judgment of conviction. Title 18, U.S.C.A. Sec. 3653; 45 Comp.Gen. 780 (1966). The Petitioner contends that Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L. Ed.2d 336 (1967), is controlling. The Mem/pa case is clearly distinguishable. Mempa, an indigent, was not provided counsel at a Washington State revocation of probation hearing. The Supreme Court held that he was entitled to counsel as a matter of right. The Court reasoned that the Petitioner was involved in a Gideon type criminal proceeding where substantial rights of the “criminal accused” could be" } ]

[ { "docid": "17142662", "title": "", "text": "constitutional protection in the probation and parole contexts. In the first of the trilogy, Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), the defendant was placed on probation and the “imposition of sentence was deferred.” 389 U.S. at 130, 88 S.Ct. at 255. After the defendant violated the conditions of his probation, the district court, without asking the unrepresented defendant whether he wanted appointed counsel, revoked his probation and imposed a ten-year jail term. The Supreme Court held that the defendant-probationer had a Sixth Amendment right to counsel at the combined probation revocation and sentencing hearing. The Supreme Court concluded that the imposition of the “deferred” sentence after probation was revoked triggered the Sixth Amendment because sentencing is a “stage of a criminal proceeding where substantial rights of a criminal accused may be affected.” 389 U.S. at 134, 88 S.Ct. at 257. In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the Supreme Court turned from the imposition of a deferred sentence following the revocation of probation to procedural protection applicable to parole revocation proceedings. The Court held that the loss of liberty that may result from revocation of parole gives rise to a liberty interest cognizable under the Due Process Clause. After Morrissey, parole may not be revoked unless the parolee is afforded a hearing as to probable cause and a final revocation hearing. At the preliminary parole revocation hearing, a parolee is entitled to notice of the alleged parole violations, an opportunity to appear and to present evidence, a conditional right to confront the government’s witnesses, an independent decision-maker, and a written report of the hearing. See Morrissey, 408 U.S. at 485-487, 92 S.Ct. at 2602-03. The “minimum requirements of due process” applicable to the final revocation hearing are substantially similar. See Id. at 489, 92 S.Ct. at 2604. The question of “whether the parolee is entitled to the assistance of retained counsel or to appointed counsel if he is indigent” was left open. Id. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)," }, { "docid": "19776890", "title": "", "text": "to support by itself a holding that the right to counsel applies at sentencing.” The inapplicability of Mempa is immediately apparent. The petitioner here was represented by counsel at sentencing and all other critical stages of the proceedings against him on the simple burglary charge. By the grace of the trial court, he was allowed, in effect, to serve that sentence on the street, provided he did not violate the conditions imposed upon that privilege. The hearing on the question of whether he breached those conditions was not another trial, but was merely an administrative proceeding designed to help supervise petitioner during the period of his punishment and hoped-for rehabilitation. Revocation of probation is the severest of four different discretionary sanctions which Louisiana courts may apply when they find that probationers are not responding properly to their conditional freedom. LSA-C.Cr.P. art. 900. A probationer cannot appeal the proper utilization by the state of any of those procedures. In this case, the state properly utilized the sanction of probation revocation. A state defendant who was sentenced prior to being placed on probation has been held to have no constitutional right to the assistance of counsel at a subsequent revocation hearing. United States ex rel. Bishop v. Brierly, 288 F.Supp. 401 (E.D.Pa.-1968). The same result has obtained in cases arising out of similar probation revocation procedures in the federal courts. Holder v. United States, 285 F.Supp. 380 (E.D.Tex.-1968); Sammons v. United States, 285 F.Supp. 100 (S.D.Tex.-1968). For these reasons petitioner’s application for a writ of habeas corpus will be denied and judgment will be entered accordingly." }, { "docid": "23309796", "title": "", "text": "of precedent in the Fourth Circuit that there is no right to counsel at least at revocation proceedings where the parolee does not contest that he violated a condition of his parole, see Gaskins v. Kennedy, 350 F.2d 311 (4th Cir. 1965); Jones v. Rivers, 338 F.2d 862, (4th Cir. 1964), has been cast in serious doubt by that Circuit’s recent holding that Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), establishes a right to counsel at every state probation revocation proceeding, regardless of whether an extensive factual inquiry may be expected. Hewett v. North Carolina, 415 F.2d 1316 (4th Cir. 1969). See fn. 8, infra. . The Fifth Circuit has quite recently construed Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), contrary to the reading given it by the Fourth Circuit, fn. 6, supra, as establishing no right to counsel at probation revocation hearings generally because they are a “matter of grace.” Shaw v. Henderson, 430 F.2d 1116, 1119 (July 2, 1970). . On September 21, 1970, the Eastern District of Wisconsin, in Scarpelli v. Gagnon, 317 F.Supp. 72, construed a recent holding by the Seventh Circuit, Hahn v. Burke, 430 F.2d 100 (1970), which held Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967) to establish a right to counsel in all state probation revocation proceedings, as overruling sub silentio earlier authority in the Seventh Circuit that there was no right to appointed counsel in federal parole revocation hearings. See Richardson v. Markley, 7th Cir., 339 F.2d 967, cert. denied 382 U.S. 851, 86 S.Ct. 100, 15 L.Ed.2d 90 (1965). . In Curtis v. Bennett, 351 F.2d 931 (1965), the Eighth Circuit relied on the theory of the Eseoe dictum that “parole is a matter of grace” in holding that due process did not require so much as a hearing prior to parole revocation. That court has not departed from its Ourtis ruling and by a narrow margin {en bane 4 to 3) has adhered to Ourtis on the rationale that “the prisoner has" }, { "docid": "7553132", "title": "", "text": "the appellant need not, therefore, “pass muster under constitutional standards relating to indigents.” Goforth v. Dutton, 409 F.2d 651, 653 (5th Cir. 1969) . But even if it did, the record supports the district court’s conclusion that the appellant was not denied ef fective assistance of counsel, tested under the standards set forth in Brooks v. Texas, 381 F.2d 619 (5th Cir. 1967). Secondly, it is questionable whether the appellant has standing to challenge the effectiveness of his attorney’s assistance at the revocation proceeding, because it is unclear whether a probationer has the right to counsel at that type of proceeding at all. In Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), the Supreme Court held that one has the right to counsel at such a proceeding, but apparently only if a substantial right might be affected. In Mempa, the sentence was deferred and was not imposed until the revocation proceeding. In this case, the appellant was sentenced prior to being placed on probation. The only effect of the revocation proceeding was to order the commencement of the earlier-designated sentence. In cases similar to this one, several courts have construed Mempa narrowly and have concluded that there is no right to counsel. Shaw v. Henderson, 303 F.Supp. 183 (E.D.La.1969); Splawn v. Fitzharris, 297 F.Supp. 44 (C.D.Cal.1969); United States ex rel. Bishop v. Brierly, 288 F.Supp. 401 (E.D.Pa.1968); Holder v. United States, 285 F.Supp. 380 (E.D.Tex.1968); Sammons v. United States, 285 F.Supp.100 (S.D.Tex.1968); United States v. Hartsell, 277 F.Supp. 993 (E.D.Tenn.1967); see also, Williams v. Patterson, 389 F.2d 374 (10th Cir. 1968). But 6n similar facts also distinguishable from Mempa, the Fourth and Sixth Circuits have held that the right to counsel at a revocation hearing is absolute. Hewett v. State, 415 F.2d 1316 (1969); Ashworth v. United States, 391 F.2d 245 (6th Cir. 1968). Our court has not considered this question, and we need not reach it here— the appellant in this case was represented by counsel, and his counsel’s assist-anee was effective, even tested under the standards relating to criminal defendants. We noted the" }, { "docid": "19776888", "title": "", "text": "until after revocation of his probation on March 5, 1968. This Court need not speculate as to why he and his retained attorney felt it advisable not to appeal. However, an obvious reason was petitioner’s guilt and the hope that by admitting his error he might demonstrate a positive attitude to the court at any subsequent probation hearing. The relevant factor is not that the tactic failed, but that petitioner knew of his right of appeal and waived it for tactical reasons. As a practical matter, even if he had been denied the right to appeal the weapons conviction, it could not have affected the subsequent revocation of probation. One of the conditions of probation was that petitioner not “have in [his] possession firearms or other dangerous weapons * * Article 900 of the Louisiana Code of Criminal Procedure authorizes revocation of probation if the sentencing court decides “that the defendant has violated, or was about to violate, a condi tion of his probation * * There is no requirement that a probationer be convicted of a crime before probation can be revoked. Therefore, while holding that Shaw knowingly waived his right to appeal, the Court is of the opinion that, even if it had been denied, such denial would not have affected the legality of his present incarceration. Petitioner’s next contention is that he was denied the right to counsel at the probation hearing, relying upon Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). The issue in Mempa was “the extent of the right to counsel at the time of sentencing where the sentencing has been deferred subject to probation.” The court noted that, since Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the “appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected. In particular, Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948), illustrates the critical nature of sentencing in a criminal case and might well be considered" }, { "docid": "23319387", "title": "", "text": "counsel at all sentencing proceedings, and that “sentencing” is not confined to what a judge first prescribes after trial. In both Mempa and the companion case, Walkling v. Board of Paroles, the defendant had first been sentenced to a term of probation to begin after serving a term of imprisonment and after making restitution to the defendant’s victim. Id. at 130, 132, 88 S.Ct. 254. The right to counsel issue was raised at a second sentencing hearing, which took place months (as in Mempa) or years (as in Walkling) later. The same was true in McConnell v. Rhay, supra, which held Mempa retroactive. To the extent that Mempa emphasized the need for counsel in sentencing by a judge presumably trained in fact-finding and operating within a structure of traditional objectivity and impartiali ty, one may ask whether counsel is not a fortiori required at a sentencing hearing by a Parole Board. Moreover, because the role of the trial judge in Mempa was so limited (he could only impose the “maximum term”), the true role of counsel was to produce facts for the future use of the Parole Board. Accordingly, I believe that Mempa supports appellant’s assertion that he is entitled to the services of counsel before the New York Parole Board for the purpose of “in general aiding and assisting the defendant to present his case as to sentence.” Mempa, supra, 389 U.S. at 135, 88 S.Ct. at 257. Cf. Hewett v. North Carolina, 415 F.2d 1316, 1322 (4th Cir. 1969), and Ashworth v. United States, 391 F.2d 245 (6th Cir. 1968) (per cu-riam), both holding that because of Mem-pa, counsel is now required at revocation of probation proceedings. See also Cohen, Sentencing, Probation, and the Rehabilitative Ideal: The View from Mempa v. Rhay, 47 Tex.L.Rev. 1 (1968). Moreover, there are other recent decisions that support appellant’s position. In Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), the Court struck down a prison regulation barring inmates from furnishing assistance to other prisoners in the preparation of petitions for post-conviction relief. In Goldberg v. Kelly, 397" }, { "docid": "9871455", "title": "", "text": "SKOPIL, Circuit Judge: We must determine in this appeal whether a defendant who is denied representation of counsel at trial may be later sentenced to a term of imprisonment following revocation of probation. We conclude in this case that imprisonment cannot be imposed. We vacate the sentence and remand. I Gerald Dee Foster was charged with committing petty offenses in a national forest in violation of 16 U.S.C. § 551 (1988). Such offenses may be “punished by a fine of not more than $500 or imprisonment for not more than six months, or both.” 16 U.S.C. § 551. Prior to trial, Foster sought an appointment of counsel. The district court declined to appoint counsel, apparently because the government advised the court that it would not request jail time if Foster was convicted. Following Foster’s conviction, the court suspended imposition of sentence and placed Foster on probation. His probation was subject to certain conditions including the performance of maintenance work in the national forest. Foster failed to satisfy the conditions of his probation. The district court commenced probation violation proceedings and appointed counsel for Foster. After a hearing the district court revoked Foster’s probation and sentenced him to six months’ imprisonment. II The Supreme Court has held that “no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.” Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 2012, 32 L.Ed.2d 530 (1972). The government contends, however, that Foster was imprisoned not for his violations of section 551 but rather because he failed to satisfy the conditions of probation. The government points out that Foster was properly provided counsel for the probation revocation proceeding. See Mempa v. Rhay, 389 U.S. 128, 137, 88 S.Ct. 254, 258, 19 L.Ed.2d 336 (1967). Foster’s violation of probation, the government argues, is a separate offense which allows the district court to sentence anew. We reject the government’s argument. When imposition of sentence has been suspended and probation has been revoked, the court may impose only the sentence it originally might have" }, { "docid": "2768244", "title": "", "text": "Meyer, 169 Pa.Super. 40, 82 A.2d 298 (1951); Commonwealth ex rel. Paige v. Smith, 130 Pa.Super. 536, 198 A. 812 (1938). We agree with the able district court judge that, since the state court found relator “had ‘perpetrated a fraud upon the court,’ * * * we find no violation of [relator’s] constitutional rights.” On the Federal side, it has been held that the district courts have the authority to revoke the suspension of sentence and probation for acts done by a probationer after sentence and before the probation sentence was to run on unusual facts similar to those present here. Cline v. United States, 116 F.2d 275 (C.A.5, 1940); James v. United States, 140 F.2d 392, 394 (C.A.5, 1944); Longknife v. United States, 381 F.2d 17 (C.A. 9, 1967). See also, Davis v. Parker, 293 F.Supp. 1388, 1392 (D.C.Del.1968). In view of this we fail to see how it would be violative of due process for a state court to exercise the same authority, even though it was exercised upon the heels of a judicially approved termination of an intervening twenty-one month parole period served by the appellant. The order of the district court will be affirmed. . In Pennsylvania, the maximum prison sentence for the crime of burglary is 20 years (18 P.S. § 4901), and for each of the crimes of larceny and receiving stolen goods it is 5 years (18 P.S. §§ 4807 and 4817). . In Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), the Court held that the Sixth Amendment as applied through the Due Process Clause of the Fourteenth Amendment requires that counsel be afforded to a felony defendant in a post-trial proceeding for revocation of his probation and imposition of deferred sentencing whether it be labeled a revocation of probation or a deferred sentencing. . The double jeopardy prohibition of the Fifth Amendment is enforceable against the States through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d" }, { "docid": "9871456", "title": "", "text": "commenced probation violation proceedings and appointed counsel for Foster. After a hearing the district court revoked Foster’s probation and sentenced him to six months’ imprisonment. II The Supreme Court has held that “no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.” Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 2012, 32 L.Ed.2d 530 (1972). The government contends, however, that Foster was imprisoned not for his violations of section 551 but rather because he failed to satisfy the conditions of probation. The government points out that Foster was properly provided counsel for the probation revocation proceeding. See Mempa v. Rhay, 389 U.S. 128, 137, 88 S.Ct. 254, 258, 19 L.Ed.2d 336 (1967). Foster’s violation of probation, the government argues, is a separate offense which allows the district court to sentence anew. We reject the government’s argument. When imposition of sentence has been suspended and probation has been revoked, the court may impose only the sentence it originally might have imposed. United States v. McDonald, 611 F.2d 1291, 1295 (9th Cir.1980). Thus, when probation is revoked, “the case reverts to its status at the time probation was granted.” Roberts v. United States, 320 U.S. 264, 271, 64 S.Ct. 113, 117, 88 L.Ed. 41 (1943). Since imprisonment could not have been imposed on Foster at the conclusion of his trial, see Argersinger, 407 U.S. at 37, 92 S.Ct. at 2012, imprisonment could not be imposed on Foster following revocation of his probation, see Roberts, 320 U.S. at 271, 64 S.Ct. at 117; McDonald, 611 F.2d at 1295. The government relies on United States v. Nash, 703 F.Supp. 507 (W.D.La.), aff'd, 886 F.2d 1312 (5th Cir.1989) (table). In that case, the district court held that the possibility of imprisonment upon revocation of probation “is not sufficient to require appointment of counsel at the initial proceedings.” Id. at 510. The court reasoned that it must retain the authority to enforce compliance with the terms of a probation. “Even if the only punishment a defendant receives is a fine," }, { "docid": "23541651", "title": "", "text": "record of the accused. See e. g. N.C.Gen.Stat. §§ 15-197, 15-198 (1965). Any judge who might be called upon to consider probation or sentence for future offenses for either of petitioners would be bound to be influenced by that petitioner’s prior probationary experience. Nor do we believe that the fact that petitioners are multiple offenders requires a different conclusion. See, Sibron v. New York, supra, 392 U.S. at 56, 88 S.Ct. 1889. V The key to decision as to whether petitioners were unconstitutionally denied the right to counsel when their probation was revoked is consideration of Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). In the context of the State of Washington’s unique revocation of probation and deferred sentencing procedure, Mempa held that the appointment of counsel was constitutionally required when proceedings to revoke probation were conducted. In Mempa the Court dealt with a situation in which no sentence was initially imposed, imposition being delayed until such time as probation was revoked. Many lower federal courts have read Mempa narrowly to apply oqly to the factual context of the singular state procedure with which that case dealt. See, e. g., Williams v. Patterson, 389 F.2d 374 (10 Cir. 1968) (Mempa inapplicable to parole revocation proceeding); United States ex rel. Bishop v. Brierly, 288 F.Supp. 401 (E.D.Pa.1968); Holder v. United States, 285 F.Supp. 380 (E.D. Tex.1968); Sammons v. United States, 285 F.Supp. 100 (S.D.Tex.1968); United States v. Hartsell, 277 F.Supp. 993 (E.D. Tenn.1967). On the other hand, Ash-worth v. United States, 391 F.2d 245 (6 Cir. 1968), has held that Mempa establishes the right to counsel at federal revocation of probation proceedings. A similar result was reached with regard to revocation of probation under New Jersey law in State v. Seymour, 98 N.J. Super. 526, 237 A.2d 900 (N.J.App.Div. 1968). See, generally, Note, Constitutional Law — Right to Counsel — State Courts Split on Probationers Right to Counsel at Revocation Hearing, 42 N.Y.U.L.Rev. 955 (1967). As we read Mempa we are persuaded, unlike the majority of the decisions which deny the right to counsel, that it" }, { "docid": "17142661", "title": "", "text": "of probation. 18 U.S.C. § 3563(c). Fed.R.Crim.P. 32.1(b) provides: A hearing and assistance of counsel are required before the terms or conditions of probation or supervised release can be modified, unless the relief to be granted to the person on probation or supervised release upon the person’s request or the court’s own motion is favorable to the person, and the attorney for the government, after having been given notice of the proposed relief and a reasonable opportunity to object, has not objected. An extension of the term of probation or supervised release is not favorable to the person for the purposes of this rule. The rights guaranteed by Fed.R.Crim.P. 32.1(b) are subject to waiver. See generally United States v. Mezzanatto, 513 U.S. 196, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995) (“The provisions of [the Federal Rules of Criminal Procedure] ... are presumptively waiva-ble....”). The Rule 32.1(b) rights to a hearing and counsel before a term of probation is extended, while statutorily created, are rooted in a trilogy of Supreme Court cases addressing the scope of constitutional protection in the probation and parole contexts. In the first of the trilogy, Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), the defendant was placed on probation and the “imposition of sentence was deferred.” 389 U.S. at 130, 88 S.Ct. at 255. After the defendant violated the conditions of his probation, the district court, without asking the unrepresented defendant whether he wanted appointed counsel, revoked his probation and imposed a ten-year jail term. The Supreme Court held that the defendant-probationer had a Sixth Amendment right to counsel at the combined probation revocation and sentencing hearing. The Supreme Court concluded that the imposition of the “deferred” sentence after probation was revoked triggered the Sixth Amendment because sentencing is a “stage of a criminal proceeding where substantial rights of a criminal accused may be affected.” 389 U.S. at 134, 88 S.Ct. at 257. In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the Supreme Court turned from the imposition of a deferred sentence following the revocation" }, { "docid": "23309784", "title": "", "text": "reimprisonment stands to lose a “presently enjoyed” interest in his conditional freedom that the Menechino panel aptly characterized as “a liberty akin to a private interest.” 430 F.2d at 409. It is not sophistic to attach greater importance to a person’s justifiable reliance in maintaining his conditional freedom so long as he abides by the conditions of his release, than to his mere anticipation or hope of freedom. In this respect, this case is indistinguishable from Mem pa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), establishing the right to legal representation at Washington State’s unusual deferred sentencing and probation revocation proceeding. Both the probationer and parolee have “been given a status that is considerably more desirable than that of a prisoner. When revocation is threatened, they all have the same interest in maintaining that status.” Rose v. Haskins, 388 F.2d 91, 103 (6th Cir. 1968) (Celebrezze, J., dissenting). The cost to Bey of revocation thus far has been eleven years of imprisonment. Moreover, we do not doubt that a parole revocation is more likely than a denial of initial release to mar a prisoner’s record, perhaps adversely affecting his chances for future parole. Even after release from prison, it is only realistic to assume that a former inmate’s job opportunities and standing in the community will also be influenced by his prison record. Parole revocation will inevitably connote wrongdoing and thus the citizen whose parole was once revoked will continue to carry a burden analogous and in addition to his criminal stigma. See Hahn v. Burke, 430 F.2d 100, 102 (7th Cir. 1970). Thus, it seems incontestable to say that “substantial rights” of Bey were “affected” by the revocation proceeding. For that reason as well as those stated below, Bey was entitled to the assistance of a lawyer. Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). B. The Lawyer’s Role in a Parole Revocation Proceeding A decision to revoke parole, like a parole release determination, inevitably involves the discretionary application of principles and knowledge derived from study and experience" }, { "docid": "19776889", "title": "", "text": "of a crime before probation can be revoked. Therefore, while holding that Shaw knowingly waived his right to appeal, the Court is of the opinion that, even if it had been denied, such denial would not have affected the legality of his present incarceration. Petitioner’s next contention is that he was denied the right to counsel at the probation hearing, relying upon Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). The issue in Mempa was “the extent of the right to counsel at the time of sentencing where the sentencing has been deferred subject to probation.” The court noted that, since Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the “appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected. In particular, Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948), illustrates the critical nature of sentencing in a criminal case and might well be considered to support by itself a holding that the right to counsel applies at sentencing.” The inapplicability of Mempa is immediately apparent. The petitioner here was represented by counsel at sentencing and all other critical stages of the proceedings against him on the simple burglary charge. By the grace of the trial court, he was allowed, in effect, to serve that sentence on the street, provided he did not violate the conditions imposed upon that privilege. The hearing on the question of whether he breached those conditions was not another trial, but was merely an administrative proceeding designed to help supervise petitioner during the period of his punishment and hoped-for rehabilitation. Revocation of probation is the severest of four different discretionary sanctions which Louisiana courts may apply when they find that probationers are not responding properly to their conditional freedom. LSA-C.Cr.P. art. 900. A probationer cannot appeal the proper utilization by the state of any of those procedures. In this case, the state properly utilized the sanction of probation revocation. A state defendant who was sentenced" }, { "docid": "23384479", "title": "", "text": "381 F.2d at 20. Since the defendant here was arrested on state charges the day of sentencing, the court can hardly be thought to have abused its discretion in revoking probation once Ross had pleaded guilty to those charges. Only a narrow and proscriptive reading of Sections 3651 and 3653 could yield the contrary result urged by the appellant. We do not so read these provisions. Sound policy requires that courts should be able to revoke probation for a defendant’s offense committed before the sentence commences; an immediate return to criminal activity is more reprehensible than one which occurs at a later date. III. To conclude that it was not improper per se for the district court to revoke the appellant’s probation is not to hold that the hearing at which revocation was ordered was properly conducted. The appellant asserts, first, that Mempa v. Rhay, 1967, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336, establishes a right to the assistance of counsel at every critical stage of a criminal proceeding, including a hearing on revocation of probation and, second, that his waiver of that right was ineffective because it was not intelligently and knowingly made. we agree with both of these contentions. Although the district judge recognized that Ross was entitled to counsel at the hearing, a brief explanation of our conclusion that counsel was required may be appropriate. As Ross notes, Mempa v. Rhay instructs that “appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.” 389 U.S. at 134, 88 S.Ct. at 257, 19 L.Ed.2d at 340. Although Ross was not an indigent, he was entitled to the presence and assistance of his retained counsel at the revocation hearing if it was a proceeding to which Mempa applies. In this Circuit, however, Mempa has been read as requiring counsel only at those relocation hearings at which resentencing takes place. Shaw v. Henderson, 5 Cir. 1970, 430 F.2d 1116, 1118-1119. Since we are convinced that his revocation was essentially resentencing, we have no" }, { "docid": "7553133", "title": "", "text": "proceeding was to order the commencement of the earlier-designated sentence. In cases similar to this one, several courts have construed Mempa narrowly and have concluded that there is no right to counsel. Shaw v. Henderson, 303 F.Supp. 183 (E.D.La.1969); Splawn v. Fitzharris, 297 F.Supp. 44 (C.D.Cal.1969); United States ex rel. Bishop v. Brierly, 288 F.Supp. 401 (E.D.Pa.1968); Holder v. United States, 285 F.Supp. 380 (E.D.Tex.1968); Sammons v. United States, 285 F.Supp.100 (S.D.Tex.1968); United States v. Hartsell, 277 F.Supp. 993 (E.D.Tenn.1967); see also, Williams v. Patterson, 389 F.2d 374 (10th Cir. 1968). But 6n similar facts also distinguishable from Mempa, the Fourth and Sixth Circuits have held that the right to counsel at a revocation hearing is absolute. Hewett v. State, 415 F.2d 1316 (1969); Ashworth v. United States, 391 F.2d 245 (6th Cir. 1968). Our court has not considered this question, and we need not reach it here— the appellant in this case was represented by counsel, and his counsel’s assist-anee was effective, even tested under the standards relating to criminal defendants. We noted the foregoing only to indicate that since constitutional standards pertaining to revocation proceedings are, to date, less stringent in some areas, see part (1) supra, they may also be less stringent in this particular right-to-counsel area. Having concluded that the district court properly denied the appellant’s petition for the writ of habeas corpus, we Affirm. APPENDIX UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS EL PASO DIVISION HECTOR SALDIVAR AMAYA versus CIV-68-28-EP DR. GEORGE J. BETO, Director, Texas Department of Corrections ORDER AND MEMORANDUM OF DECISION DENYING PETITION FOR HABEAS CORPUS The prior proceedings in this habeas corpus case are evident from the orders heretofore entered by the Court, copies of which are attached hereto. Having considered these proceedings, the files and records of the ease, the testimony and evidence adduced at the hearings, and the written and oral comments of counsel, the Court finds and rules as follows: Petitioner is in the custody of the State of Texas, or, more immediately, respondent. In 1960 petitioner was convicted on his plea of guilty in the 34th" }, { "docid": "23541652", "title": "", "text": "to apply oqly to the factual context of the singular state procedure with which that case dealt. See, e. g., Williams v. Patterson, 389 F.2d 374 (10 Cir. 1968) (Mempa inapplicable to parole revocation proceeding); United States ex rel. Bishop v. Brierly, 288 F.Supp. 401 (E.D.Pa.1968); Holder v. United States, 285 F.Supp. 380 (E.D. Tex.1968); Sammons v. United States, 285 F.Supp. 100 (S.D.Tex.1968); United States v. Hartsell, 277 F.Supp. 993 (E.D. Tenn.1967). On the other hand, Ash-worth v. United States, 391 F.2d 245 (6 Cir. 1968), has held that Mempa establishes the right to counsel at federal revocation of probation proceedings. A similar result was reached with regard to revocation of probation under New Jersey law in State v. Seymour, 98 N.J. Super. 526, 237 A.2d 900 (N.J.App.Div. 1968). See, generally, Note, Constitutional Law — Right to Counsel — State Courts Split on Probationers Right to Counsel at Revocation Hearing, 42 N.Y.U.L.Rev. 955 (1967). As we read Mempa we are persuaded, unlike the majority of the decisions which deny the right to counsel, that it cannot be limited to its narrow factual context. The principle which undergirds that decision is broad indeed, “appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.” (emphasis supplied.) 389 U.S. at 134, 88 S.Ct. at 257. While the right to counsel applies to “criminal proceedings,” we have little doubt that the revocation of probation is a stage of' criminal proceedings. Even if a new sentence is not imposed, it is the event which makes operative the loss of liberty. Consistent with the basic principle of Mempa, we must consider whether North Carolina’s revocation procedure may affect the substantial rights of the individual involved; our inquiry is not concerned with whether North Carolina’s procedure is a carbon copy of that employed by the State of Washington. To begin with, we recognize that at stake in a revocation of probation proceeding is individual liberty, and the substantiality of this right may not be disputed. We are not impressed by the argument" }, { "docid": "1985558", "title": "", "text": "was charged by state authorities with attempted robbery. While in jail for this offense, he contacted federal authorities and asked that his probation be revoked at that time rather than some uncertain future date. On March 7, 1963, in compliance with his request, he was brought before this court for a probation revocation hearing. At this time he was not informed of a right to have counsel appointed. He admitted the state charge and his probation was revoked and he was ordered to serve the five year sentence he had received the year before. However, he was not released by state authorities until May 1967, and was not delivered to federal authorities until that time. In his present motion, petitioner attacks his sentence on the sole ground that he was not informed of his right to counsel at the probation revocation hearing. In support of his position, he cites Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). The United States has answered, claiming that Mempa is distinguishable from the case at bar. After careful analysis of Mempa, I find that the position of the United States is correct and that petitioner’s motion must be denied. In Mempa, Mr. Justice Marshall, after reviewing earlier decisions of the Court, stated, “ * * * that appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.” 389 U.S. at 134, 88 S.Ct. at 257. While this language lends some support to petitioner’s claim for relief, it was not the holding of the case. See United States v. Hartsell, 277 F.Supp. 993 (E.D.Tenn. 1967). The lower federal courts have long held that the constitutional right to assistance of counsel in the defense of a criminal prosecution, given by the Sixth Amendment, does not apply to a hearing on a motion to revoke probation. Welsh v. United States, 348 F.2d 885 (6th Cir. 1965); Bennett v. United States, 158 F. 2d 412 (8th Cir. 1947), cert. denied, 331 U.S. 822, 67 S.Ct. 1302, 91 L.Ed." }, { "docid": "22633724", "title": "", "text": "be a written statement of reasons for any termination, including some indication of the evidence supporting the adverse decision. Our recent decision in Escalera v. New York City Housing Authority, 425 F.2d 853 (2d Cir. 1970), instructed that a state’s withdrawal of the “privilege” of residing in a public housing project was onerous enough to require it to provide those affected with adequate advance notice, a hearing, access to adverse evidence, cross-examination of adverse witnesses, full disclosure of rules governing the hearing, and a reasoned decision based solely on the evidence adduced at the hearing. Somewhat closer in point to the present case is Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). The court held that representation of petitioners by counsel was essential to the fairness of their deferred sentencing proceedings. The imposition of sentence had been suspended and the petitioners placed on probation. In the proceedings under review, defendants were faced with both sentencing and imprisonment on the first convictions for committing second offenses while out on probation. The Supreme Court determined that defendants should have been represented by counsel. Legal skills, the Court reasoned, would have aided petitioners in “marshalling the facts” and might have ensured that important legal rights were not lost because unexercised at that stage. Federal courts disagree as to the reach of Mempa to probation revocation proceedings generally. See the extensive citation of cases in Hewett v. North Carolina, 415 F.2d 1316, 1322 (4th Cir. 1969). In Hewett the court decided that counsel was a necessary component of fundamental fairness at a probation revocation hearing, “the event which makes operative the loss of liberty,” because a trained lawyer might have prevented the admission against defendant of improper evidence, and, through appropriate objections, exceptions, and assignments of error, have preserved defendant’s right to appeal. Escalera and Goldberg are persuasive recent authority that states may not avoid the rigors of due process by labelling an action which has serious and onerous consequences as a withdrawal of a “privilege” rather than a “right.” Mempa warns us that procedural formality may be required" }, { "docid": "10328362", "title": "", "text": "GEE, Circuit Judge: Petitioner was convicted in 1970 for felony theft and was sentenced to life imprisonment under the Texas habitual offender statute. The conviction was affirmed and state habeas corpus relief was denied. Petitioner then filed this application for a writ in federal district court, alleging that one of the two prior convictions used to enhance his sentence resulted when probation was revoked without a hearing, without counsel, and without petitioner’s knowledge or presence. The district court denied relief. He asks this court to hold that the probation revocation was unconstitutional, making the conviction unavailable for enhancement and requiring that his life sentence be reformed to ten years, the maximum sentence for felony theft. Petitioner argues that because of the nature of Texas probation revocation hearings counsel is constitutionally required by Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). The State of Texas believes the probation revocation proceeding to be so important that it requires counsel at all such hearings effective January 1, 1966. But we are asked to examine a probation revocation that occurred in 1960 before Texas required the appointment of counsel, and it is not clear that Mempa v. Rhay's absolute right to counsel applies. The state argues that in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), the Court distinguished the combined revocation and sentencing proceeding at issue in Mempa v. Rhay and refused to recognize this absolute right to counsel in probation revocation hearings which do not involve sentencing, suggesting instead a case-by-case determination of the probationer’s need for the assistance of counsel. Because the instant revocation hearing in 1960 did not include the imposition of sentence, the state argues that Gag-non v. Scarpelli controls rather than Mempa v. Rhay. Petitioner does not dispute that when he was convicted in 1959 his sentence was imposed and the execution of sentence suspended, so that at the time probation was revoked in January 1960, the revocation proceeding did not include the imposition of sentence. Petitioner’s probation revocation hearing in 1960 thus more closely resembled the simple" }, { "docid": "23309795", "title": "", "text": "(1963). . The decision in Menechino was followed in Lewis v. Rockefeller, 431 F.2d 368 (2d Cir. 1970) (refusing to convene a three-judge court). The other recent case discussing due process in parole processes was United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161 (2nd Cir., 1970), holding evidence seized as fruit of an illegal search by state police to be admissible in .a revocation hearing. . People ex rel. Menechino v. Warden, 27 N.Y.2d 376, 318 N.Y.S.2d 449 (1971) (Fuld, Chief Judge). . Tlie Board was required to consider, among other things, Bey’s attitude toward his crime, his “maturity, stability, sense of responsibility and any apparent development in his personality,” his “readiness to assume obligations,” his “mental or physical make-up,” his “attitude toward law and authority,” and his response to efforts made to improve his “mental and moral condition.” . It is nowhere specified in the record that Mercer was the parole officer who supervised Bey’s activities while he was on parole, although that appears to be a reasonable assumption. . The vitality of precedent in the Fourth Circuit that there is no right to counsel at least at revocation proceedings where the parolee does not contest that he violated a condition of his parole, see Gaskins v. Kennedy, 350 F.2d 311 (4th Cir. 1965); Jones v. Rivers, 338 F.2d 862, (4th Cir. 1964), has been cast in serious doubt by that Circuit’s recent holding that Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), establishes a right to counsel at every state probation revocation proceeding, regardless of whether an extensive factual inquiry may be expected. Hewett v. North Carolina, 415 F.2d 1316 (4th Cir. 1969). See fn. 8, infra. . The Fifth Circuit has quite recently construed Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), contrary to the reading given it by the Fourth Circuit, fn. 6, supra, as establishing no right to counsel at probation revocation hearings generally because they are a “matter of grace.” Shaw v. Henderson, 430 F.2d 1116, 1119 (July 2, 1970). . On" } ]

[ { "docid": "22777173", "title": "", "text": "he had the money ready. As soon as he ascertained the proper agent he tendered payment in due form.' It is obvious that the- present case is very different from'that. The reason why the insurance company gives notice to its members of the time of payment of premiums is to aid their memory and to stimulate them to prompt payment. The company is under no obligation to give such notice, and.assumes no responsibility by giving it. The duty of the-assured'to pay at-the day is-the same, whether notice be given or not-. Banks often give notice to their, customers of the approaching maturity of their promissory notes or bills of exchange; but they are not obliged to give such notice, and their neglect to. do it would--furnish no excuse for non-payment at-the day. The fourth replication sets up a parol agreement of -defendant made on receiving the promissory - note, that the policy should not become void on the.non-payment of. the note alone at maturity, but was to . become void at the-instance and election of -the defendant, which -election had never .been made. As this supposed agreement -is- in .-direct':contradiction .to the express terms of the policy and the note itself, it cannot affect them, but is itself void. We did hold, in Eggleston’s case, it is true, that any agreement, declaration, *or course of action on the part of an insurance company, which leads a party -insured honestly to. believer that by conforming thereto-a-forfeiture of his policy will not be incurre^-, followed by due conformity on his part, will estop the company from insisting upon the forfeiture. An _insurance company may waive-a-,forfeiture or may agree not to enforce a forfeiture; but a parol agreement, made at the time of issuing a policy, contradicting the terms of the policy itself, like any other parol agreement -ineonsistentwith a written instrument made contemporary therewith, is void, and cannot be set up to contradict the writing. So, in this case, a parol agreement supposed to be made at the time of giving and accepting the premium note cannot be set up to contradict" } ]

[ { "docid": "8112535", "title": "", "text": "the policy cannot lapse or be forfeited. The statute provides: No policy shall in any case be forfeited ... until the expiration of 30 days after the mailing of such notice. Texas Life argues that the date the notice is mailed triggers a 30-day time period in which payment must be made. After those 30 days, the policy can be terminated. Hence, it argues, the fact that it gave only nine days notice does not contravene the statute, provided that the insured had a total of 30 days in which to comply. Texas Life has misconstrued the purpose of the 30-day rule. This provision does nothing to cure the defect resulting from the company’s failure to give 15 days notice. Instead, this provision declares a dead zone of 30 days during which the policy cannot lapse or be forfeited after the mailing of a timely premium notice. We emphasize that this 30-day rule requires proper notice as a predicate. Failure to give at least 15 and not more than 45 days notice before the premium is due renders the 30-day provision inapplicable. Here, as stated above, Texas Life gave only nine days notice; hence, the 30-day provision has no bearing on the issues presented by this appeal. This reading allows a coherent construction of the statute as a whole. The threshold inquiry is whether proper, timely notice was given. The one-year extension, as detailed above, applies when no notice has been sent or the notice that was sent was untimely or otherwise defective. Alternatively, if proper notice was given, the 30-day rule applies, giving the insured a 30-day grace period in which to secure another means of protection. Who Gets The Notice? The determinative clause in the statute as affects the bank’s rights is, happily, the least ambiguous: Section 22:177 requires the insurance company to send notice to “the person whose life is insured or the assignee of the policy”. Not surprisingly, the bank would have us read “or” as “and” while the insurance company believes that “or” is used here in the disjunctive. Louisiana state law dictates that the" }, { "docid": "20335986", "title": "", "text": "with this dissent. In view of my position on this threshold issue, I will not address the other question that has been decided by the majority. . The consequence in Vermont for failure to comply with 8 V.S.A. § 4715(a) is set forth at 8 V.S.A. § 4715(b), which requires the insurer to \"grant its insured renewal coverage at the rate or premium in effect under the expiring or expired policy or at rates lawfully in effect on the expiration date ... for 45 days after the insurer confirms renewal coverage and premium.” 8 V.S.A. § 4715(b). . In the event that the insured elects not to renew the policy by nonpayment of the required premium, the policy lapses by its own terms. See, e.g., Lopez v. New Jersey Auto. Full Ins. Underwriting Ass’n, 239 N.J.Super. 13, 16-17, 570 A.2d 994, 995 (App.Div.) (\"where an offer to renew ... is made by the insurer ... and the offer is not accepted by timely payment of the premium, the policy lapses on the expiration date”), certification denied, 122 N.J. 131, 584 A.2d 206 (1990); 18 George J. Couch, Cyclopedia of Insurance Law § 68:11, at 14 (Rev.2d ed. 1983) (\"Even where notice is required for nonrenewal, there may be no duty to notify where the insured fails to pay the renewal premium after receiving a bill for such premium.”). . Although these cases involve cancellation rather than renewal, their discussion of notice and to whom notice should be given is equally persuasive in the renewal context." }, { "docid": "18869585", "title": "", "text": "contends that the notice never arrived. Kemper did not receive payment for the quarterly premium for the policy at issue by April 16, 1990, and asserts it then mailed out a second, or reminder notice, approximately twenty days after the paid-to-date. However, between March 19, when the first notice allegedly was mailed, and May 7, when Kem-per contends it prepared a twenty-day overdue notice, the mailing address for the policy at issue had been changed on Kemper’s records to 12603 Overbrook, Leawood, Kansas, 66203. Defendant claims she never had any association with the Leawood address, and has no idea where that mailing address came from. Kemper’s records show that the address was changed, but not who requested the change. No written correspondence concerning the change was produced during discovery. Under the contract of insurance, when the payment due on April 16 went unpaid, the grace period for the policy at issue here expired May 17, 1990. On January 15, 1991, Jerry L. Ellis, the insured, died. Agent Lome Miller called Kemper a few days after Ellis’ death and was informed that the policy had lapsed because no premium payments were made after January 1990. On February 11, 1991, NIC requested that the policy be reinstated, and tendered a check to Kem-per for the unpaid premiums. On February 19, 1991, Miller submitted to Kemper claims on both policies on the decedent’s life. Kem-per paid (to NIC) the insurance proceeds and interest due under the policy on which premiums had been paid but denied defendant’s claim for payment of the proceeds under the policy at issue, asserting it had lapsed on April 16, 1990, for nonpayment of premiums. On July 12, 1991, Kemper filed its complaint seeking a declaratory judgment. Defendant filed an answer and counterclaim alleging Kemper was obligated to pay the face amount of the policy because the nonpayment of premiums resulted from Kem-per’s breach of its contractual obligations to properly send premium due notices and lapse of policy notice. On December 9, 1991, de fendant filed her separate demand for a jury trial; Kemper timely filed its opposition to" }, { "docid": "8173312", "title": "", "text": "notice statute to which the Plaintiff refers is one of a group of provisions located in Article 37 of Title 38 of the South Carolina Code. There are certain instances when the provisions of Article 37 are inapplicable to the insurer-insured relationship; these instances are provided for in S.C.Code Ann. § 38-37-1510 (1976). Among its provisions, this section provides that: Nothing in this article shall apply: (1) if the insurer has manifested to the insured its willingness to renew by actually issuing or offering to the insured to issue a renewal policy, certificate or other evidence of renewal, or has manifested such intention to the insured by any other means.... Thus, if an insurance company manifests an intention to renew, the notice requirements of S.C.Code Ann. § 38-37-1450 (1976) need not be complied with. The threshold question, therefore, is whether the October 3,1981 premium notice for renewal sent by the insurer was sufficient to absolve it of the notice requirements of Title 38, Article 37 of the South Carolina Code. The Regulations of the South Carolina Insurance Department are particularly helpful on this question. Regulation 69-13, Section 6(1) — 1 provides: Some insurers effect a renewal of their policies by sending a renewal premium notice to the insured a reasonable period of time in advance of the expiration date of his policy. In such case, timely payment of the premium by the insured is all that is necessary to keep his policy in force. In this situation the mailing by the insurer of such renewal premium does constitute a manifestation of willingness by the insurer to renew within the meaning of § 38-37-1510(1). If the insured fails to pay the renewal premium when due, after receiving such notice, the policy will terminate in accordance with its terms. No further notice to the insured by the insurer of an intention not to renew for non-payment of premium is necessary.. .. This regulation clarifies the duty of the insurance company to the insured. The Defendant clearly fulfilled its obligation to the Plaintiff by sending a renewal premium notice to the insured on" }, { "docid": "22184033", "title": "", "text": "of the estate, brought this action in the District Court, Northern District, New York (§ 445, c. 10, Title 38, U. S. C.). It alleged issuance of the policy, that all matured premiums upon the policy had been- duly paid, and asked recovery. According to the provisions of the policy it expired October 2nd. But petitioner claimed, and the District Court ruled, that because the Bureau failed to give notice concerning allocation of the sum forwarded July 1st, failed to give notice of the due dates of the premium or that the policy had or was about to lapse, and retained the two payments of $3.95 each, the United States were estopped to deny liability. It said: “ If. the defendant was a private insurance company, I would have no hesitancy in declaring it estopped from claiming the policy had lapsed for non-payment of premium. . . . The same principle should be applied against the defendant in this case. ‘ When the United States went into the insurance business, issued policies in familiar form, and provided that, in the case of disagreement, it might be sued,- it must be assumed to have accepted the ordinary incidents of suits in such business.’ ” Judgment for the petitioner was reversed. The Circuit Court of Appeals held: “ The conditions of the policy relating to premium payments were not met by payment of the premium due September 1, 1927, and the insurance policy therefore expired, counting in the grace period, on October 2, 1927, unless there was a waiver by the appellee. The claim that there was such a waiver cannot be sustained. . . . The law does not permit waiving statutory requirements by the acts of employees of the government. The failure to pay the premiums prior to October 2 resulted in a lapse of the policy which may not now be held to be waived by the conduct of the government’s employees.” The cause is here by certiorari granted upon an application which asserts that the questions presented are: First, whether the United States are engaged in the life" }, { "docid": "10437294", "title": "", "text": "bar, it terminates at that time without any notice. The contract in the case at bar terminated at the expiration of the twelve-month period for which the premium had been paid unless an additional premium for an additional twelve months was paid before the expiration of the twelve months during which the policy was effective. Under the additional provisions, subdivision (8) of the contract, the policy was renewable subject to all of its provisions, from term to term, by payment of the premium in advance at the company’s premium rate in force at the time of renewal if the company consented to such renewal. It is optional with the insurer under the provisions of a contract like the one in the case at bar whether the policy will be periodically renewed upon each successive expiration. MacDonald v. Metropolitan Life Insurance Co., 304 Pa. 213, 155 A. 491, 77 A.L.R. 353. The contract provides: “ ‘This policy may be renewed subject to all of its provisions, from term to term, with the consent of the Company, and by the payment of the premium in advance of the Company’s premium rate in force at time of renewals.’ “There was no absolute right of renewal. The right of renewal was subject to the consent of the insurer. Under the terms of the policy, it was optional with the insurer whether or not to renew the policy. “The policy expired October 23, 1934. At no time prior to the date of expiration was a further premium ever paid, or deducted by the company. The policy in the case at bar was not written for an indefinite term like life insurance. Such indeterminate policies are written for life subject to forfeiture for nonpayment of premium, etc. Those contracts do not have to be renewed. They continue until one party or the other breaches the contract. The accident insurance policy in the case at bar is not such a policy. It was written for a definite term of twelve months, subject to renewal if both parties agreed to do so. In a life insurance policy and" }, { "docid": "8173313", "title": "", "text": "Carolina Insurance Department are particularly helpful on this question. Regulation 69-13, Section 6(1) — 1 provides: Some insurers effect a renewal of their policies by sending a renewal premium notice to the insured a reasonable period of time in advance of the expiration date of his policy. In such case, timely payment of the premium by the insured is all that is necessary to keep his policy in force. In this situation the mailing by the insurer of such renewal premium does constitute a manifestation of willingness by the insurer to renew within the meaning of § 38-37-1510(1). If the insured fails to pay the renewal premium when due, after receiving such notice, the policy will terminate in accordance with its terms. No further notice to the insured by the insurer of an intention not to renew for non-payment of premium is necessary.. .. This regulation clarifies the duty of the insurance company to the insured. The Defendant clearly fulfilled its obligation to the Plaintiff by sending a renewal premium notice to the insured on October 3, 1981. The Plaintiff cannot complain of the Defendant’s subsequent letter informing the Plaintiff of its intention to cancel the policy, for such notice was not required under the laws of South Carolina. It is therefore clear, and it is this Court’s holding, that the Defendant insurer fulfilled its obligation to the insured under the laws of South Carolina. By mailing its premium notice for renewal of the policy, the Defendant manifested a willingness to renew the policy. The Plaintiff could have renewed his automobile policy by sending a premium for renewal to the Defendant. The Defendant had no further notice obligations to the Plaintiff; that there is no coverage for the two automobile accidents is the sole fault of the Plaintiff. I therefore hold that there was no insurance coverage at the time of the Plaintiff’s automobile accidents. Therefore, judgment is rendered accordingly in favor of the Defendant. AND IT IS SO ORDERED." }, { "docid": "15975474", "title": "", "text": "advising him that “we must cancel your group policy with The Guardian effective September 15, 1979,” for nonpayment of premiums. Naiditch had died, however, on November 29, 1979. Under the terms of the policy and the pre-authorized check plan, the insurance was no longer in force on the date of Naiditch’s death. The policy provided a grace period for the late payment of premiums: A grace period of thirty-one days, without interest charge, will be allowed the Policyholder for the payment of the premium due under this Policy on any due date except the first. If any premium with respect to the Employees of any Participating Employer is not paid before the expiration of the grace period, this policy shall automatically terminate with respect to all Employees of such Participating Employer at the expiration of the grace period .... The pre-authorized check plan provided that “[i]f a check is refused payment by the bank for any reason, other than an error in drawing, it will be determined that payment of premium was not tendered by the policyholder and the policy will lapse subject to the grace period provision of the policy.” No premium payment was made on or after August 15, 1979. Coverage therefore lapsed under the terms of the policy after the thirty-one day grace period expired on September 15, 1979, well before Naiditch’s death more than two months later. As the facts indicate, the insurer gave no notice of cancellation prior to Naiditch’s death. Arguing that § 56-2430 required such notice, the executor seeks to escape the automatic expiration provisions of the policy and pre-authorized check plan. We find that avenue of escape foreclosed. II. In Robertson v. Southland Life Insurance Co., 130 Ga.App. 807, 204 S.E.2d 505 (1974), upon which the district court relied, a beneficiary of a life insurance policy sought to recover the proceeds, but the Georgia Court of Appeals found that the policy was not in effect on the date of the insured’s death. According to the court, it had previously lapsed at the end of a grace period following the dishonor of a" }, { "docid": "18653128", "title": "", "text": "expiration of a fire insurance policy. Plaintiff admits that the premium on the insurance policy, due on May 6, 1977, was unpaid; however, he contends he was never billed for said policy, nor received any notice the policy had expired prior to the loss. Plaintiff’s counsel argues that notice is required to be given in event of expiration by Va.Code § 38.1-371.-2, or, alternately, that the parties’ previous course of dealing created a duty to give notice. Defendant, on the other hand, maintains that there is no duty arising from statutory requirements or otherwise to require notice of expiration. The circumstances that bring this question before the court are as follows: Plaintiff’s wife first made arrangements to insure the Gate City property against the hazards of fire in 1972 or 1973. Premiums were paid yearly thereafter until May 6, 1977, the expiration date of the last policy, when plaintiff failed to pay the premium. The plaintiff’s address on record through out that period, according to the insurance company’s agent handling the account, was Route 3, Gate City, Virginia. The evidence establishes that plaintiff’s wife had advised the agent’s office in 1973 that they were moving to Michigan, and that the file folder in the agent’s office had the Michigan address noted on it. Although evidence was given that no premium notices were received at the Gate City address except for the first year the property was insured, the evidence also indicates it was standard practice for the insurance company to send out a premium notice twenty days before the expiration date and then to send a second notice out after the due date. The insurance agent testified he regularly receives copies of these notices and also sends a reminder after he receives the past due notice. On or about May 6, 1977, Nationwide Insurance Company mailed to Lucky Gene Compton, at Route 3, Gate City, Virginia, a “past due notice” that stated: We haven’t received your premium payment due on the indicated date [May 6, 1977]. This is notice that the policy is cancelled ten days after receipt of this" }, { "docid": "22184032", "title": "", "text": "$3.95 by or for the assured were made to the Bureau November 2nd and December 20th respectively. These were retained, but were not acknowledged until after the assured’s death. After issuance of the policy no notice was given the assured concerning payment of premiums, default, or that the policy had lapsed or was about to do so. Apparently the only communications sent prior to his death were the receipt of July 29th, and the policy, delivered September 19th. Nothing indicates that the Bureau ordinarily sent notices concerning premiums or lapses. We are referred to no statute or regulation which required such a notice. No officer of the Bureau is shown to have had power to reinstate lapsed policies without evidence of insurability. Mahar became totally incapacitated October 17th, but the Bureau had no notice of this fact. He died the twenty-fourth of December. Payment under the policy was refused upon the ground that it had lapsed because of failure to pay the premium due September 1st. The grace period ended October 2nd. Petitioner, as administrator of the estate, brought this action in the District Court, Northern District, New York (§ 445, c. 10, Title 38, U. S. C.). It alleged issuance of the policy, that all matured premiums upon the policy had been- duly paid, and asked recovery. According to the provisions of the policy it expired October 2nd. But petitioner claimed, and the District Court ruled, that because the Bureau failed to give notice concerning allocation of the sum forwarded July 1st, failed to give notice of the due dates of the premium or that the policy had or was about to lapse, and retained the two payments of $3.95 each, the United States were estopped to deny liability. It said: “ If. the defendant was a private insurance company, I would have no hesitancy in declaring it estopped from claiming the policy had lapsed for non-payment of premium. . . . The same principle should be applied against the defendant in this case. ‘ When the United States went into the insurance business, issued policies in familiar form," }, { "docid": "12914043", "title": "", "text": "assignment of the policy and what impact that had on the right of Norwest to receive notice. As will be seen, however, this Court does not find that issue to be dispositive. “An insurance policy is a type of property which may be assigned as collateral.” Matter of Estate of Devine, 628 N.E.2d 1227, 1229 (Ind.App.1994). “The general rule is that ‘[i]n the absence of any statute or contract of the insurer to the contrary or conduct of the insurer giving rise to a duty to notify the assignee, there is no duty on the insurer to notify an assignee of the policy of premiums or assessment due thereon.’ ” First United Life Ins. Co. v. Northern Indiana Bank, 444 N.E.2d 1241, 1245 (Ind.App.1983) (citation omitted). “On the other hand where the assignment is absolute and unqualified in fact so that the entire beneficial interest in the policy vests in the assignee and it is the assignee’s obligation to make payments necessary to preserve the policy, then at least where the insurer has consented to the assignment, required notices should be given to the assignee.” Id. (emphasis in original). Here, plaintiff has pointed to no statute which would require Federal Kemper to send premium and lapse notices to Nor-west. Nor does Norwest allege in its complaint that Federal Kemper engaged in conduct which gave rise to a duty to send premium and lapse notices. Norwest does, however, allege that Federal Kemper had a contractual duty to send such notices. The policy issued to Russell contained a box, number 17 on the application, which read: In response to those queries, Russell checked the boxes marked “annual” and “owner.” Norwest contends that this meant that under the terms of the policy, Russell was entitled to notice of premiums due and any lapses and that, upon assignment, Norwest then was entitled to the same. For its part, Federal Kemper claims that box 17 did not require that Russell be sent any such notices. It argues: Box 17 of the application does not create any obligation for Federal Kem-per to send premium or lapse" }, { "docid": "18869600", "title": "", "text": "did not receive either the first notice, the second notice, or the lapse notice. . Defendant also argues that consumer expectations are that they will receive more than one mailing. . Kan.Stat.Ann. §§ 40-410 and 40-411 provide protection for insureds who fail to receive notice as required by the statutes. 40-410. Cancellation of policy for nonpayment of premiums; notice, when; policyowner defined. It shall be unlawful for any life insurance company ... doing business in this state within six (6) months after default in payment of any premium or installment of premium, to forfeit or cancel any life insurance policy on account of nonpayment of any such premium or installment of premium thereon, without first giving notice in writing to the policyowner of such policy of its intention to forfeit or cancel the same: Provided, however, That this section shall not apply to any policy under the terms of which the premium is to be paid weekly, biweekly or monthly and under which a grace period of at least, four (4) weeks is granted for the payment of every premium after the first, during which time the insurance shall continue in force.... 40-411. Notice of intention to cancel policy for non-payment of premiums; time for payment. Before any such cancellation or forfeiture can be made for the non-payment of any such premium the insurance company shall notify the policyowner of any such policy that the premium thereon, stating the amount thereof, is due and unpaid, and of its intention to forfeit or cancel the same, and such policy-owner shall have the right, at any time within thirty (30) days after such notice has been duly deposited in the post office, postage prepaid, and addressed to such policyowner to the address last known by such company, to pay such premium: Provided, That in lieu of the notice hereinbefore provided, in the case of policies providing for a period of grace of not less than thirty (30) days, or one month, for the payment of premiums and containing any provision for cancellation or forfeiture in case of nonpayment of premiums at the" }, { "docid": "9930727", "title": "", "text": "of premium due); 91 A.L.R.2d 546, 549 (1963) (rule arises because of insured’s reliance on assumption he is receiving policy containing same terms and conditions as before). Here, however, the circumstances were such that Mountain Fuel had no basis for assuming that the coverage would continue unchanged after June 9, 1980, with respect to Mountain Fuel. Instead Mountain Fuel had notice, from the certificates of insurance returned to it in 1979, that the Reliance/Harbor policy was “Expiring 6/9/80.” Despite notice of that expiration date, Mountain Fuel took no affirmative action to have a new certificate or policy provision make Mountain Fuel a “named insured” by that date, and instead waited some six months to do so. For reasons that follow, we hold that Reliance was under no obligation to notify Mountain Fuel further of the expiration on June 9, 1980, of Mountain Fuel’s status as a named insured. The June 11, 1979, certificate, making Mountain Fuel a named insured through paragraph f, had plainly stated that the basic coverage was “Expiring June 9, 1980.” Absent a policy or statutory provision to the contrary, an insurer is under no duty to give notice of a policy’s expiration date. First National Bank in Sioux City v. Watts, 462 N.W.2d 922, 927 (Iowa 1990); Waynesville Security Bank v. Stuyvesant Ins. Co., 499 S.W.2d 218, 222 (Mo.Ct.App. 1973). It has been noted that “the majority, though not necessarily the better view, is that the insurer need give no notice of the termination of policy coverage.” 12A Appleman, Insurance Law and Practice § 7175, at 19. And it “has been held that where a liability policy is one for a ‘specific term of duration’ and not one for an indefinite period and, thus, under regulations automatically expired at the end of its term, the insurer was under no duty to give statutory notice as required when a policy is forfeited or suspended or cancelled for nonpayment of premium.” 43 Am.Jur.2d Insurance § 237, at 320; Couch on Insurance 2d § 67:28, at 482. We feel that this rule applies here and would be followed by" }, { "docid": "8112534", "title": "", "text": "American relies on an old New York case, Davis v. Northwest Mutual Life Ins. Co. , for the proposition that the insurance policy should remain in effect until the company formally sends a notice of termination. In the Davis case, the court held that, under a similar statute, the policy was not terminat ed after a one-year extension. In Davis, however, the insured made a payment during the course of that year*. This is a crucial distinction. Unlike Davis, the case of Liesny v. Metropolitan Life Ins. Co. , cited by the Davis court, is synonymous with the facts here at issue. In Liesny, the insured failed to make a payment during the one-year extension and, consequently, the court held that the policy had terminated. We too refuse to read the one-year extension in section 22:177 as self-perpetuating, absent a clear indication that the legislature so intended. The 30-Day Provision Even if an insurance company gives proper and timely notice of a premium deadline, section 22:177 creates for the insured a “safe zone” during which the policy cannot lapse or be forfeited. The statute provides: No policy shall in any case be forfeited ... until the expiration of 30 days after the mailing of such notice. Texas Life argues that the date the notice is mailed triggers a 30-day time period in which payment must be made. After those 30 days, the policy can be terminated. Hence, it argues, the fact that it gave only nine days notice does not contravene the statute, provided that the insured had a total of 30 days in which to comply. Texas Life has misconstrued the purpose of the 30-day rule. This provision does nothing to cure the defect resulting from the company’s failure to give 15 days notice. Instead, this provision declares a dead zone of 30 days during which the policy cannot lapse or be forfeited after the mailing of a timely premium notice. We emphasize that this 30-day rule requires proper notice as a predicate. Failure to give at least 15 and not more than 45 days notice before the premium" }, { "docid": "18869590", "title": "", "text": "that this conduct would have caused a reasonable insured to expect a premium due notice. Id. The district court concluded the policy required Kemper to mail one notice of premium due each quarter. Defendant contends that the contract required Kemper to send at least a second, and perhaps a third notice. Defendant bases this argument on evidence that Kemper’s practice was to send a premium due notice, a second notice, and finally a notice that the policy was about to lapse. Although neither the contract or the application for insurance supports this assertion, defendant points out that in interpreting an ambiguous contract we may consider the conduct of a party, see Heyen v. Hartnett, 235 Kan. 117, 679 P.2d 1152, 1157 (1984); defendant contends that Kemper’s practice of sending two premium due notices and one lapse notice before treating a policy as forfeited for nonpayment is evidence of Kemper’s interpretation of the contract. We note, nevertheless, that defendant could not have relied upon this practice because the record indicates defendant never received-more than one notice of each premi-urn. Defendant strenuously argues that by requiring Kemper to mail only one premium notice, the district court put responsibility for continuity of coverage solely upon the policy owner. But it does not seem unreasonable to expect owners of insurance who pay premiums quarterly to notice when they have not paid a premium; the policy itself emphasizes that premiums are due in advance and advises of only a thirty-one-day grace period. Further, Kansas statutory law protects insureds for six months from cancellation of a life insurance policy unless the insurance carrier mails a termination notice of intent to cancel the policy. In the absence of contractual protections beyond that provided by the state legislature, we hold that the district court correctly found the contract required only that plaintiff mail one notice of premium due for each quarterly payment. Ill Defendant next contends that a genuine issue of material fact exists whether the March 1990 notice was mailed in compliance with the contract. Kemper had no duty to ensure defendant actually received the notice, but" }, { "docid": "18653127", "title": "", "text": "MEMORANDUM. OPINION GLEN M. WILLIAMS, District Judge. Plaintiff has filed this suit to collect on a homeowner’s insurance policy issued by defendant. The subject of the policy, a house located in Scott County, Virginia, was destroyed by fire on July 2,1977. Jurisdiction is predicated upon diversity of citizenship and more than Ten Thousand Dollars ($10,-000.00) in controversy, exclusive of interests and costs. 28 U.S.C. § 1332. The case was heard by a seven-member jury on May 14, 1979, at Big Stone Gap, Virginia; however, at the conclusion of the evidence, both plaintiff and defendant moved the court for a directed verdict. It was agreed and stipulated by counsel for plaintiff and defendant that no issue of fact existed for the jury to decide, since the facts were undisputed. It was further stipulated by the parties that all questions relevant to a decision as to Nationwide were matters of law to be determined by the court. The question before the court is whether an insurance company is under a duty to advise an insured of the expiration of a fire insurance policy. Plaintiff admits that the premium on the insurance policy, due on May 6, 1977, was unpaid; however, he contends he was never billed for said policy, nor received any notice the policy had expired prior to the loss. Plaintiff’s counsel argues that notice is required to be given in event of expiration by Va.Code § 38.1-371.-2, or, alternately, that the parties’ previous course of dealing created a duty to give notice. Defendant, on the other hand, maintains that there is no duty arising from statutory requirements or otherwise to require notice of expiration. The circumstances that bring this question before the court are as follows: Plaintiff’s wife first made arrangements to insure the Gate City property against the hazards of fire in 1972 or 1973. Premiums were paid yearly thereafter until May 6, 1977, the expiration date of the last policy, when plaintiff failed to pay the premium. The plaintiff’s address on record through out that period, according to the insurance company’s agent handling the account, was Route 3," }, { "docid": "15975475", "title": "", "text": "the policyholder and the policy will lapse subject to the grace period provision of the policy.” No premium payment was made on or after August 15, 1979. Coverage therefore lapsed under the terms of the policy after the thirty-one day grace period expired on September 15, 1979, well before Naiditch’s death more than two months later. As the facts indicate, the insurer gave no notice of cancellation prior to Naiditch’s death. Arguing that § 56-2430 required such notice, the executor seeks to escape the automatic expiration provisions of the policy and pre-authorized check plan. We find that avenue of escape foreclosed. II. In Robertson v. Southland Life Insurance Co., 130 Ga.App. 807, 204 S.E.2d 505 (1974), upon which the district court relied, a beneficiary of a life insurance policy sought to recover the proceeds, but the Georgia Court of Appeals found that the policy was not in effect on the date of the insured’s death. According to the court, it had previously lapsed at the end of a grace period following the dishonor of a premium check drawn under a pre-authorized check plan. In response to the beneficiary’s argument that the policy could not lapse but had to be affirmatively cancelled by written notice in accordance with § 56-2430, the court stated: This contention is without merit. Code Ann. § 56-2430 has no application in this case as it applies to the cancellation of a policy. The facts show beyond all doubt or question that the insurance policy in issue was not canceled, but simply expired or lapsed because of nonpayment of premium.... The statute does not apply, nor was it intended to apply, to the expiration or lapse of an insurance contract (policy) because of failure to pay premium necessary to keep a policy in force according to its terms. Id. at 808-809, 204 S.E.2d at 506-507. The court in Robertson construed a version of § 56-2430 enacted in 1968. That version, as does the present version, provided that “[cjancellation of a policy which by its terms and conditions may be cancelled by the insurer shall be accomplished as" }, { "docid": "18653130", "title": "", "text": "notice. Any excess premium (if not tendered) will be refunded on demand. If your payment is received before the cancellation date, the policy will be reinstated as of the date of cancellation without lapse of coverage. The notice also indicates that a certified copy of the notice was sent to the insured on May 13, 1977. Plaintiff testified that this notice was never received, and if he had received it, he would have paid the amount due. Plaintiff’s home and the contents thereof were destroyed by fire in July of 1977, after which time the plaintiff attempted to pay the premium on the policy but was refused. Plaintiff correctly states that Virginia law requires that notice be given to a policyholder before cancellation will be effective. Va.Code § 38.1-371.2 states that “no policy or contract of fire insurance . shall be terminated by an insurer by cancellation except upon written notice for one of the following reasons only: (1) Failure to pay the premium for the policy when due . . ..” Va.Code § 38.1-371.2 (Cum. Supp.1979). The Code further provides that written notice of cancellation or refusal to renew a policy of insurance must be sent to the insured by registered or certified mail before the cancellation or refusal to renew is effective. Va.Code § 38.1-371.1 (Repl. Vol.1976). Plaintiff reads these sections as requiring the defendant to notify an insured when a policy has expired. The defendant allegedly failed in this duty because its agent had knowledge of the Michigan address of the plaintiff, but continued to send the notices to the address in Gate City, Virginia, which were never received by the plaintiff. The Virginia Supreme Court has not decided whether an agent or an insurance company has a duty to advise an insured of the expiration of a fire insurance policy. Questions of state law presented to a federal court in a diversity case must be decided from the perspective of the highest state court, rather than from the court’s own perspective. Kline v. Wheels by Kinney, Inc., 464 F.2d 184 (4th Cir. 1972). In the absence" }, { "docid": "9930728", "title": "", "text": "a policy or statutory provision to the contrary, an insurer is under no duty to give notice of a policy’s expiration date. First National Bank in Sioux City v. Watts, 462 N.W.2d 922, 927 (Iowa 1990); Waynesville Security Bank v. Stuyvesant Ins. Co., 499 S.W.2d 218, 222 (Mo.Ct.App. 1973). It has been noted that “the majority, though not necessarily the better view, is that the insurer need give no notice of the termination of policy coverage.” 12A Appleman, Insurance Law and Practice § 7175, at 19. And it “has been held that where a liability policy is one for a ‘specific term of duration’ and not one for an indefinite period and, thus, under regulations automatically expired at the end of its term, the insurer was under no duty to give statutory notice as required when a policy is forfeited or suspended or cancelled for nonpayment of premium.” 43 Am.Jur.2d Insurance § 237, at 320; Couch on Insurance 2d § 67:28, at 482. We feel that this rule applies here and would be followed by the Wyoming court. The argument that Darenco’s renewal of its Reliance policy, with no provision for Mountain Fuel, somehow creates coverage for Mountain Fuel, absent notice to it, would lead to a result which is neither required nor supported by case law or policy considerations. Where a policy’s coverage is renewed, the duty to notify the insured of “changes in the coverage or conditions of the policy,” Aetna Insurance Co. v. Lythgoe, 618 P.2d at 1060, is a different matter. We hold, therefore, that the coverage of Mountain Fuel as a named insured under the Reliance/Harbor policy expired on June 9, 1980, in accordance with the 1979 certificates of insurance furnished to Mountain Fuel. And Mountain Fuel had no basis for recovery as an additional insured due to the completed operations exclusion. See note 7, supra. The parties raise a number of other issues, all premised upon the district court’s holding that Mountain Fuel was covered by Reliance as a named insured at the time of the McDonald accident. Since we disagree with that ruling," }, { "docid": "12914027", "title": "", "text": "MEMORANDUM OF DECISION AND ORDER WILLIAM C. LEE, Chief Judge. This matter is before the Court on a Motion for Summary Judgment filed by the defendant Federal Kemper on April 19, 2000. Plaintiff Norwest Bank responded to that motion on May 19, 2000 to which defendant filed a reply on May 30, 2000. Also before the Court is “Defendant’s Motion to Strike Portions of Plaintiffs Response and Affidavits Relevant to Promissory Estoppel” filed May 30, 2000 as well as a “Motion for Leave to File Amended Complaint” filed June 2, 2000. Those motions too have been fully briefed. For the following reasons, defendant’s motion for summary judgment will be granted. Defendant’s motion to strike will be granted and plaintiffs motion to file an amended complaint will be denied. Factual Background Plaintiff brought this breach of contract action against the defendant alleging that the defendant had wrongfully terminated a life insurance policy which had been assigned to plaintiff without giving plaintiff required notices of premiums due or policy lapse. Defendant has taken the position that it had no duty to provide such notices and that, in any event, it did in fact provide notices. The facts underlying the dispute are essentially the following. In 1988, Federal Kemper issued a life insurance policy to Richard S. Russell. The policy, which had coverage in the amount of $400,000, was for a term of twenty-eight years, beginning in July 1988 and ending in July 2016. Premium payments were to be made on a semi-annual basis — one payment due on January 26 and the other due on July 26 of any given year. On January 9,1990, Russell assigned the policy in favor of Angola State Bank as collateral security for a loan. A couple of weeks later, on January 24, 1990, Federal Kemper acknowledged the collateral assignment and informed Angola State Bank that the assignee would be notified upon expiration of the grace period should the premium not be paid. On September 1, 1992, Federal Kemper sent a letter to Angola State Bank indicating that the Russell policy had lapsed due to default in" } ]

[ { "docid": "17372677", "title": "", "text": "estimated selling values. 36 C.F.R. § 223.4. To determine the minimum acceptable bid, the NFS then adds the cost of the roads specified in the contract to the indicated stumpage. The bidding process then determines the contract rate or actual stumpage. During the course of performance as the timber is logged, the purchaser pays the contract rate “stumpage” less the purchaser credits allowed for the specified road costs. The ARM contract was advertised on December 21, 1969, for bids on an estimated total of 7,400 thousand board feet (MBF) comprised of 1,500 MBF Douglas-fir, 4,700 MBF western hemlock, and 1,200 MBF cedar. The NFS estimated the selling price per MBF for Douglas-fir at $167.45; for hemlock at $123.17; and for cedar at $110.79. Total production costs per MBF were estimated at $118.61 for Douglas-fir; $94.78 for hemlock; and $97.39 for cedar. Specified road costs for each species were $21.49 per MBF. Indicated stumpage per MBF (selling value less costs) was $29.56 MBF for Douglas-fir; $14.21 for hemlock; and $.66 for cedar. The minimum bid price (indicated stumpage plus road costs) was $51.05 MBF for Douglas-fir; $35.70 for hemlock; and $22.15 for cedar. Everett bid $51.55 per MBF for the Douglas-fir and the minimum acceptable bid for the remaining species, and the NFS awarded the contract to Everett as high bidder. The contract was one of “adhesion” in that bidders had to accept the contract terms the government wrote into the invitation, only the price being open for the bidder to specify. Neither the contract nor the applicable agency regulations provided for cancellation of the contract for environmental reasons. On April 27,1970, Everett entered a subcontract with Miller Shingle Co., Inc. (Miller), whereby Miller was to perform all logging, road construction, road maintenance, and other timber removal services. For logging services, Everett agreed to pay Miller $40.00 per MBF for merchantable delivered timber. For Miller’s road construction services, Everett agreed to pay Miller $190,-500 — an addition of $31,489 to the original $159,011 worth of purchaser road credits. Miller was obligated to accept any adjustments in the total contract price for" } ]

[ { "docid": "21374837", "title": "", "text": "Big Burn timber sale. Among other things, the advertisement (as amended prior to June 9,1975) stated in substance that the proposed sale involved an estimated 4,690 MBF of timber; that applicable purchaser road credits were $166,194; that the sale was \"in deficit”; and that full information concerning the timber, the conditions of sale, and the submission of bids should be obtained from the District Ranger, Clearwa-ter Ranger District, or the Forest Supervisor. The phrase \"in deficit” indicated to prospective purchasers that the proposed sale did not have sufficient value to realize a normal profit as calculated under the Forest Service’s appraisal system. When a proposed timber sale is \"in deficit”, the proposed contract contains no payment mechanism for recovery of estimated road construction costs at advertised rates; a prospective purchaser has apparently to decide whether or not the sale is economically feasible in order to recover his operating costs. Among other things, the Big Burn timber sale prospectus advised prospective purchasers that the sale area, and a sample contract, should be inspected before submitting a bid; that the quality, size, and age class of the timber involved were estimates based on detailed cruise information available for inspection at the Forest Service’s office in Grangeville, Idaho; that values shown were not estimates of a purchaser’s own recovery, and were not a part of the proposed contract; and that for these reasons bidders were urged to examine the timber sale area and make their own recovery estimates. The prospectus further stated that the minimum acceptable bid rate had been established by appraisal as though roads specified by the proposed contract (described hereinafter) were in place, and that applicable purchaser credit up to the amount shown in the advertisement (i.e., $166,194) would be credited to the purchaser’s timber sale account as the specified roáds were constructed and accepted; that purchaser credit might be applied only to timber charges in excess of timber value at base rates; and that \"it is estimated that there will be $166,194.00 insufficient value of timber at advertised rates to permit purchasers to recover the total estimated cost of" }, { "docid": "21374842", "title": "", "text": "escalation possible under Section B3.2 was $76,500, the maximum amount available (given maximum escalation) for recovery, by way of purchaser credit, of road cost estimates, was $153,000. Each of the figures stated in this paragraph is based upon a cutout, for each species, of the estimated quantity for that species listed in Section A2. The Big Burn contract required that plaintiff reconstruct 4.4 miles of existing road and construct 2.8 miles of new road. As the prospectus had indicated it would, that contract called for post-sale engineering and design of specified roads. The date specified for completion of road engineering design and specifications was June 30, 1976, more than a year after contract award. The contract also provided that where the Forest Service completed road design during the contract, the estimated costs and purchaser credit limit stated in Section A10 would be revised, with the methods of computing such revised costs to be consistent with the methods that would have been used had the engineering been performed prior to sale advertisement. There was, however, no provision in the contract for a concomitant revision of Section B4.21, defining (and limiting the amount of)\"effective purchaser credit” (emphasis supplied) as indicated hereinabove. As of 1975, plaintiff was quite experienced in Forest Service timber sale contracts but not so experienced in \"deficit” contracts. When plaintiff decided to bid on the Big Burn contract, it knew that the specified roads it would be required to construct (or reconstruct) if awarded that contract had not yet been designed, and that they would not be completely designed for more than a year after June 9, 1975. It knew that on completion of road design Section A10 would be revised, as to both estimated costs and purchaser credit limit, and that in the event of specified differences, or of physical or design changes, appropriately adjusted changes in the Big Burn contract’s estimated construction costs and purchaser credit limit would also be made. Plaintiff also then knew, however, that the maximum possible effective purchaser credit under that contract (calculated using plaintiffs bid premiums, and assuming cutout for each species" }, { "docid": "7171388", "title": "", "text": "The prospectus also sets the length of time the contractor will be allowed to perform the contract and speaks to the timing of contractor payments for timber. Interested parties are invited to bid based on the information provided in the prospectus and the bidders’ own examination of the site. The terms laid out in the prospectus are not open to negotiation. Our predecessor court has held that Forest Service timber contracts are contracts of adhesion. See Everett Plywood Corp. v. the United States, 227 Ct.Cl. 415, 418, 651 F.2d 723 (1981). The “What” Sale The “What” sale was advertised on August 7, 1980. It is located in the Quilcene Ranger District of the Olympic National Forest in western Washington state. The sale cruise estimated 5,700 mbf of merchantable timber and an estimated 600 mbf of per acre materi al (“PAM”). There were eight units to be clearcut and one unit to be thinned. The total advertised value of the sale was $328,109. The sale called for construction of 1.86 miles of new roads and reconstruction of 1.74 miles of existing roads. The purchaser road credit could not exceed $370,501. The agency conducted bidding on September 9, 1980. Seaboard’s was the highest of four bids, at $925,828. In addition to the requirement to cut and pay for all timber at bid rates, Seaboard had to pay deposits for slash disposal ($24.56 per mbf) and road maintenance by the Forest Service ($3.79 per mbf). The contract length was 31 months, of which 18.5 months fell within the normal operating season of April 1 through November 30. Nine months of operating season fell after the required road completion date of November 1,1981. The parties subsequently agreed to an extension to March 31, 1985 under the agency’s SOFT II extension policy. A second modification was agreed to in connection with litigation Seaboard and other timber companies had initiated. The contract eventually expired on December 28, 1985. At the time the contract terminated, Seaboard had partially performed. It had constructed all of the specified roads and had harvested 323 mbf of timber from the road" }, { "docid": "17685928", "title": "", "text": "credits” which are intended to compensate the contractor for building and maintaining roads on the site. As the roads are built, the contractor will receive a credit against the contact price he owes to the Forest Service. The amount of credit awarded for a set amount of road is laid out in the contract. The prospectus also sets the length of time which the contractor will be allowed to complete performance of the contract. For some of the original and most of the resold contracts at issue in the five cases before the court, the prospectus also stated that a certain percentage of the bid price was due up front, as a down payment, and that an additional percentage of the bid price was due at a date before the contract was completed (a “mid payment”). The contract terms laid out in the prospectus and those in the final contract are not open to negotiation. This court has in the past held that Forest Service timber contracts are contracts of adhesion. See, e.g., Everett Plywood Corp. v. the United States, 227 Ct.Cl. 415, 418, 651 F.2d 723 (1981). Interested parties are then invited to bid on the contract described in the prospectus, based on the information provided in the prospectus and the bidders’ own examination of the site. While the actual sites of the original and resale timber contracts in the cases before us remained the same, some of the terms in the resale contracts were changed. The substantiality of these changes is a matter of dispute between plaintiffs and defendant. In Capital Development, the resale contracts did differ from the original contracts in several ways. The cash down payment requirement on all of Capital’s contracts was doubled, from five to ten percent. Midpoint payments were also added or increased on several of the contracts. Reforestation costs were decreased in three contracts,, and increased in two, the Cougar and Short Flat contracts, the only contracts for which there were no resale bidders. Road construction purchaser credits were also lowered in three contracts. Plaintiff argues that these and other changes in" }, { "docid": "21374839", "title": "", "text": "specified road construction.” Prospective bidders were further informed by the prospectus that Forest Service construction engineering for specified roads on the Big Burn sale would be completed after sale award; that approximately 2.8 miles of construction, and 4.4 miles of reconstruction, of specified roads would be required; that construction estimates for such roads were not guaranteed; and that the information in the prospectus, \"together with related material, is made available with the understanding that costs or quantities shown are estimates.” As noted above, plaintiff was awarded the Big Burn timber sale June 9, 1975. There is no evidence whatever that any of the governmentally authored provisions of the Big Burn contract departed in any way from the information available prior to June 9, 1975, to prospective timber purchasers (including plaintiff) from the Forest Service’s advertisement, prospectus, and sample timber sale contract for the proposed Big Burn timber sale. By way of summary of the relevant contractual provisions, Section A2, \"Volume Estimate * * indicated a total \"Estimated Quantity” of sawlogs of 4,690 MBF, with the largest single species (grand fir) having an estimated quantity of 2,340 MBF; Section A5a, \"Timber Payment Rates * * * for Species * * * to be Paid for at Rates Escalated under B3.2”, contained base and advertised rates per MBF (in this case identical in amounts as to each species, although not identical for all species), plaintiffs \"Bid Premium” rates (ranging from a high of $17 per MBF for grand fir to a low of $15 per MBF for ponderosa pine), a \"Bid (Tentative)” rate for each species subject to quarterly adjustment for escalation under Section B3.2, and a base index for each species. Section B2.4, \"Volume Estimate”, stated that \"The estimated volumes of timber by species designated for cutting * * * and expected to be cut * * * are listed in A2.” Section B2.4 unambiguously added, however, that \"the estimated volumes stated in A2 are not to be construed as guarantees or limitations of the timber volumes to be designated for cutting under the terms of this contract.” Section B3.2 provided" }, { "docid": "21374838", "title": "", "text": "bid; that the quality, size, and age class of the timber involved were estimates based on detailed cruise information available for inspection at the Forest Service’s office in Grangeville, Idaho; that values shown were not estimates of a purchaser’s own recovery, and were not a part of the proposed contract; and that for these reasons bidders were urged to examine the timber sale area and make their own recovery estimates. The prospectus further stated that the minimum acceptable bid rate had been established by appraisal as though roads specified by the proposed contract (described hereinafter) were in place, and that applicable purchaser credit up to the amount shown in the advertisement (i.e., $166,194) would be credited to the purchaser’s timber sale account as the specified roáds were constructed and accepted; that purchaser credit might be applied only to timber charges in excess of timber value at base rates; and that \"it is estimated that there will be $166,194.00 insufficient value of timber at advertised rates to permit purchasers to recover the total estimated cost of specified road construction.” Prospective bidders were further informed by the prospectus that Forest Service construction engineering for specified roads on the Big Burn sale would be completed after sale award; that approximately 2.8 miles of construction, and 4.4 miles of reconstruction, of specified roads would be required; that construction estimates for such roads were not guaranteed; and that the information in the prospectus, \"together with related material, is made available with the understanding that costs or quantities shown are estimates.” As noted above, plaintiff was awarded the Big Burn timber sale June 9, 1975. There is no evidence whatever that any of the governmentally authored provisions of the Big Burn contract departed in any way from the information available prior to June 9, 1975, to prospective timber purchasers (including plaintiff) from the Forest Service’s advertisement, prospectus, and sample timber sale contract for the proposed Big Burn timber sale. By way of summary of the relevant contractual provisions, Section A2, \"Volume Estimate * * indicated a total \"Estimated Quantity” of sawlogs of 4,690 MBF, with the" }, { "docid": "21374841", "title": "", "text": "an \"Escalation Procedure” with respect to the Bid (Tentative) rates for each species listed in Section A5a. Under the terms of Section B3.2, those rates were subject to escalation in the following amounts (in dollars per MBF): Species Difference Between Maximum Base and Bid (Tentative) Escalation Rates Increase Grand Fir 17.00 17.00 Larch 16.00 16.00 Englemann Spruce 16.00 16.00 Ponderosa 15.00 15.00 Douglas Fir 16.00 16.00 Lodgepole Pine 16.00 16.00 Cedar 16.00 16.00 Under Section B4.21, \"Purchaser Credit”, effective (or usable) purchaser credit was defined as \"unused Purchaser Credit which does not exceed Current Contract Value minus * * *” the sum of the products of Base Rates and estimated remaining unsealed volumes by species of Included Timber meeting Utilization Standards. Any earned purchaser credit in excess of current contract value minus base rate value was unusable or ineffective, i.e., unavailable to apply to stumpage payments. The Big Burn contract expressly limited charges against purchaser credit to timber values in excess of base rates, or, in this instance (and without escalation) $76,500. Since the maximum escalation possible under Section B3.2 was $76,500, the maximum amount available (given maximum escalation) for recovery, by way of purchaser credit, of road cost estimates, was $153,000. Each of the figures stated in this paragraph is based upon a cutout, for each species, of the estimated quantity for that species listed in Section A2. The Big Burn contract required that plaintiff reconstruct 4.4 miles of existing road and construct 2.8 miles of new road. As the prospectus had indicated it would, that contract called for post-sale engineering and design of specified roads. The date specified for completion of road engineering design and specifications was June 30, 1976, more than a year after contract award. The contract also provided that where the Forest Service completed road design during the contract, the estimated costs and purchaser credit limit stated in Section A10 would be revised, with the methods of computing such revised costs to be consistent with the methods that would have been used had the engineering been performed prior to sale advertisement. There was, however, no" }, { "docid": "11964156", "title": "", "text": "and forest resources, thus frustrating the primary purpose of the contract. Everett also presents claims seeking recovery with interest for itself and its subcontractor. Lastly, Everett attacks the trial judge’s report as motivated by prejudice. I Facts Everett was a manufacturing cooperative located in Everett, Washington. It produced plywood from hardwood and softwood timber purchased in the Puget Sound area. Everett has since undergone liquidation for reasons not connected with this case. In 1970 Everett was the high successful bidder on a contract for the sale of standing timber located in the Mount Baker National Forest (hereinafter ARM sale or contract). Before setting the minimum acceptable bid on this contract, National Forest Service (NFS) staff prepared the sale between 1967 and 1969. A \"cruise” or systematic sampling of the timber within the sale area was made to estimate the quantity and quality of the timber to be sold within the specified geographic area of four units. The contract also specified the bidder was to construct 3.2 miles of permanent timber access roads as designated by the NFS. The NFS would then pay for such designated roads by $159,011 worth of purchaser road credits which would be applied by the purchaser against the agreed purchase price of the timber, or \"stumpage.” After completing the cruise, the NFS followed the appraisal theory and principles established in the NFS Manual to determine minimum acceptable bid prices for the various types of timber contained in the sale. Such an appraisal is based on the proposition that the worth of the timber to the government — or \"stumpage” — is the \"selling value” of end products such as lumber and plywood manufactured from that timber minus both the costs of production (including specified road costs) and an allowance for profit and risk to the purchaser. The NFS estimates a \"conversion return” which is the selling value minus cost of production, and this \"conversion” is then divided between a projected profit to the purchaser and the indicated stump-age to the government. Indicated stumpage, therefore, is the projected residual which develops after all costs and purchaser profit" }, { "docid": "7171387", "title": "", "text": "bidders, a timber sale commences when the Forest Service puts out a prospectus describing the timber site and the terms on which the contract is offered. Imbedded within the prospectus are numerous figures, calculations, and implicit decisions made internally by the Service. Also included within the prospectus is a minimum opening bid price, a figure that becomes important both in terms of the award and any subsequent resale attempt. The minimum bid price is the higher of the appraised rate (calculated by the Forest Service from cost data), the regulatory minimum rate for a given species, or the cost of essential reforestation, plus fifty cents per thousand board feet (mbf), known as the KV cost. The contract may also provide “purchaser credits” which are intended to compensate the contractor for building roads on the site. As the roads are built, the contractor will receive a credit against the contract price above base rates it owes to the Forest Service. The amount of credit awarded per mile of road completed is set out in the contract. The prospectus also sets the length of time the contractor will be allowed to perform the contract and speaks to the timing of contractor payments for timber. Interested parties are invited to bid based on the information provided in the prospectus and the bidders’ own examination of the site. The terms laid out in the prospectus are not open to negotiation. Our predecessor court has held that Forest Service timber contracts are contracts of adhesion. See Everett Plywood Corp. v. the United States, 227 Ct.Cl. 415, 418, 651 F.2d 723 (1981). The “What” Sale The “What” sale was advertised on August 7, 1980. It is located in the Quilcene Ranger District of the Olympic National Forest in western Washington state. The sale cruise estimated 5,700 mbf of merchantable timber and an estimated 600 mbf of per acre materi al (“PAM”). There were eight units to be clearcut and one unit to be thinned. The total advertised value of the sale was $328,109. The sale called for construction of 1.86 miles of new roads and reconstruction" }, { "docid": "7277656", "title": "", "text": "appeal was of sufficient quality to harvest, and the contractors had the opportunity to conduct a harvest if they so desired. Some logging contractors performed on their timber contracts during this period. Others did not. In April 1983, the Forest Service allowed Seaboard a two-year extension of the contract term under the agency’s SOFT II extension policy, which allowed contract extensions due to then-depressed markets for forest products. The What contract expired, uncompleted, on December 28,1985. The What contract contained a damages provision, Provision B9.4, which stated, in pertinent part, that: Damages due the United States for Purchaser’s failure to cut and remove such timber meeting Utilization Standards shall be the amount by which Current Contract Value plus the cost of resale, less any effective Purchase Credit remaining at the time of termination, exceeds the resale value at new Bid Rates. If there is no resale, damages due shall be determined by subtracting the value established by said appraisal from the difference between Current Contract Value and Effective Purchaser Credit. In 1984, Congress enacted the Federal Timber Contract Payment Modification Act, which stated that, effective 1985, “in any contract for sale of timber from the National Forests, the Secretary of Agriculture shall require a cash down-payment at the time the contract is executed and peri-odie payments to be made over the remaining time of the contract.” 16 U.S.C. § 618(d) (2000). The purported goal of these new financial requirements was to deter speculative bidding. In 1987, the Forest Service resold the What contract. Pursuant to 16 U.S.C. § 618, the resale contract incorporated both a down payment requirement (10 percent of advertised resale plus a 20 percent bid premium) and a midpoint payment requirement (25 percent of the total contract value) that equaled $61,800 and $149,000, respectively. The original What contract contained neither financial requirement. In addition, the resale contract sold less timber than the original, 5,900 MBF as opposed to the original 6,300 MBF, and contained a shorter logging period, 9.5 months of normal operating season as opposed to the original 18.5 months. There were three bidders on the" }, { "docid": "21374867", "title": "", "text": "to be paid in cash. Put another way, the dollar amount of the value of timber estimated to be available at advertised rates for the full recovery of the estimated cost of specified road construction was zero. The prospectus listed the scheduled dates for completion of such engineering as subsequently stated in the Big Burn contract. Bid rates were defined as the sum of advertised rates and bid premium rates. Use of the word \"(Tentative)” indicated that the bid rate would be subject to quarterly adjustment under Section B3.2. The base indices were to be taken into account in computing adjustment in rates for variance in product selling value as provided in Section B3.2. Other contract provisions also indicated that appropriately adjusted changes in estimated construction costs and purchaser credit limit (but not effective purchaser credit) would be made for, among other things, \"Difference in Rock Cost”, \"Difference in Culvert Installation”, \"Physical Change”, and \"Design Change”. See Part B, infra. As of June 9, 1975, plaintiff had experienced an increase in the estimated cost of construction of specified roads under another Forest Service timber sale contract involving post-engineering. Clearwater claims, however, that this was a special case not comparable to the present one. Plaintiff was in fact aware in bidding that its road construction costs would be at lesst 10 to 20 percent in excess of the estimated costs of such construction ($166,194) prior to completion of road engineering and design, as this had been its normal history in building roads under pre-engineered Forest Service timber sale contracts. An earlier request that the difference between the revised estimated cost of construction of specified roads and that stated in the contract as executed \"be paid for in cash or in an additional volume of timber charged at the same bid rate” was also denied. Plaintiffs actual cost of construction of specified roads pursuant to the Big Burn contract was $248,657. This sum is $218,331, less $166,194. Plaintiffs claim for the \"reasonable value of the [road] work on the basis of quantum, meruit’ is considered hereinafter. It is worthy of note that" }, { "docid": "7171392", "title": "", "text": "appraisal. The appraisal is done using “the standard Forest Service method in use at time of termination.” If the contract is resold, however, the contractor is credited with the proceeds of the resale, rather than the appraisal. To the extent that the current contract value is more than either the resale proceeds or the appraisal, the contractor owes the difference. The Service appraised the uncut timber and advertised it for sale on April 3, 1987. The timber was not reeruised. The resale assumed that 5,300 mbf of merchantable timber remained, along with 600 mbf of PAM. The total advertised value for the resale was $242,506. There were three bidders at the May 6, 1987 resale, one fewer than the original sale. Ben Levine was the successful bidder at $429,788. The second high bidder, Hoh River, came in at $429,688. The length of the resale contract was 14 months, of which 9.5 fell within the normal operating season. This first resale was named the What II Timber Sale. Unlike the original contract, which required no down payment, the resale to Levine required a down payment of $61,800, calculated as ten percent of the advertised resale, plus twenty percent of the total bid premium. The cash could be released when 25 percent of the volume was cut and paid for. In addition, the resale required that the purchaser have paid at least 25 percent of the total contract value by the contract midpoint. In Levine’s case, this amounted to $149,000. Both of these contract differences, which will be referred to as the down payment and midpoint payment requirements, were prompted by new legislative and regulatory requirements. On March 4, 1987, after the resale, David Unger, the Acting Associate Deputy Chief of the Service, issued a directive to contracting officers to make adjustments to the demand for damages to reflect the downward impact these changes may have had on bid prices, and set out a formula for doing so. The adjustments for down payment and midpoint payment made by the Service at that time were fundamentally a reflection of the time value of" }, { "docid": "21311400", "title": "", "text": "road surface runoff, and a final clearing of drainage ditches and culverts as necessary to insure satisfactory functioning of the road drainage system. By a directive dated May 14,1969, plaintiff was required to perform final maintenance work on the roads. Based on work performed during the period January to October, 1969, plaintiff expended $14,422.72 in performing the final maintenance of the roads. 22. In early 1969, defendant reappraised Unit 15 and redetermined the rates to be charged in the event the contract was extended for the 1969 season. The redetermined rate for hemlock, in excess of competitive quantities, was $3.20 per MBF; however, in arriving at that figure, defendant credited plaintiff with road amortization at the rate of $46.29. Without a road-amortization credit, defendant’s appraisal computa tion would have resulted in a redetermined stumpage rate of approximately $50, or more. The figure of $46.29 was far in excess of the road-amortization rates set in the contract (finding 17, Tonga I) and would have permitted plaintiff to amortize the road at a much more rapid rate. Thus, at a competitive-volume price of $26.55, timber appraised at $50 would have given plaintiff an amortization rate of $23.45 while, on volumes in excess of competitive volumes, the redetermined price of $3.20 would have given plaintiff the $46.29 rate for road amortization. 23. In 1969, the Forest Service appraised Unit 15 and established an advertised rate of $47.40 for hemlock. When, on September 30, 1969, the Forest Service attempted to sell the remaining timber on Unit 15, eight bidders were present but no bids were received at the advertised minimum price of $34.45 per MBF. The subsequent sale of the timber, on November 18,1969, was at $23 per MBF. 24. Plaintiff presented expert testimony on the issue of fair market value. Its experts appraised the timber to a log market, as opposed to the analytical-appraisal procedure used by the Forest Service. (Finding 15, Tonga I.) The value the experts assigned to the timber, $63 per MBF, was based on average export prices for logs in the fourth quarter of 1969 and the first two" }, { "docid": "21423649", "title": "", "text": "MICHEL, Circuit Judge. Prineville Sawmill Co., Inc. (Prineville) appeals the decision of the United States Claims Court, Prineville Sawmill Co., Inc. v. United States, 14 Cl.Ct. 186 (1988), granting summary judgment to the United States in Prineville’s pre-award bid protest action against the Forest Service regarding sale of salvage timber. We reverse and remand. Background On April 17, 1987, the Forest Service advertised the sale of salvage timber from the South Crater area of the Deschutes National Forest. The sale was to be conducted by an oral auction scheduled for May 19, 1987. The Forest Service sent copies of the sale advertisement and a short form prospectus to Prineville and other prospective purchasers. The advertisement included an estimate by the Forest Service of the amount of timber of the different species offered for sale. Specifically, the Forest Service estimated that the sale area contained 10,450 thousand board feet (MBF) of Ponderosa Pine, 3,650 MBF of Lodgepole Pine, and 290 MBF of White Fir and other timber. The Forest Service appraised the total value of the timber offered for sale at approximately $1.8 million. The Forest Service also made available a sample contract of sale and bid forms for use at the auction. The prospectus, the sample contract, and the bid forms notified prospective purchasers that they should not rely upon the Forest Service’s timber estimates for the total timber and individual species quantities, but should perform their own inspection and develop their own estimates. The Forest Service also notified prospective purchasers that the Service “reserved the right to reject any and all bids.” The procedure for the sale called for each bidder to submit, prior to the oral auction, a sealed bid specifying the price that the purchaser would pay per MBF of the biddable species. In accordance with standard Forest Service policy, the total value of the sealed bids would be determined by multiplying the bid rate on each species by the Forest Service's estimate of that species, and adding the total amounts bid for each species. Each bidder whose total bid exceeded the Forest Service’s appraised value for" }, { "docid": "7171386", "title": "", "text": "used in deciding this case. Timber Sales Generally The government relied primarily on two witnesses to explain the major components of the bidding process for Forest Service timber contracts. Jerry Hofer is currently head of sales, contracts and measurements for the Pacific Northwest Region of the Service, headquartered in Portland. The Pacific Northwest Region embraces the contracts at issue. He has served in the region previously as a Regional Forester Representative, acting on the Forester’s behalf in determining whether timber sale administrators were performing as required. In addition, he has served as a contracting officer and is a certified appraiser. The second witness was Christine Anderson. She is currently both a contracting officer and Assistant for Timber Management Sales to the Regional Forester. Neither witness was directly involved in the termination of the contract at bar, or in the subsequent resales. Their evidence was directed at how the Region typically conducted its activities during the relevant period, and, based on their review of the records, what happened in these contracts. From the standpoint of potential bidders, a timber sale commences when the Forest Service puts out a prospectus describing the timber site and the terms on which the contract is offered. Imbedded within the prospectus are numerous figures, calculations, and implicit decisions made internally by the Service. Also included within the prospectus is a minimum opening bid price, a figure that becomes important both in terms of the award and any subsequent resale attempt. The minimum bid price is the higher of the appraised rate (calculated by the Forest Service from cost data), the regulatory minimum rate for a given species, or the cost of essential reforestation, plus fifty cents per thousand board feet (mbf), known as the KV cost. The contract may also provide “purchaser credits” which are intended to compensate the contractor for building roads on the site. As the roads are built, the contractor will receive a credit against the contract price above base rates it owes to the Forest Service. The amount of credit awarded per mile of road completed is set out in the contract." }, { "docid": "7171389", "title": "", "text": "of 1.74 miles of existing roads. The purchaser road credit could not exceed $370,501. The agency conducted bidding on September 9, 1980. Seaboard’s was the highest of four bids, at $925,828. In addition to the requirement to cut and pay for all timber at bid rates, Seaboard had to pay deposits for slash disposal ($24.56 per mbf) and road maintenance by the Forest Service ($3.79 per mbf). The contract length was 31 months, of which 18.5 months fell within the normal operating season of April 1 through November 30. Nine months of operating season fell after the required road completion date of November 1,1981. The parties subsequently agreed to an extension to March 31, 1985 under the agency’s SOFT II extension policy. A second modification was agreed to in connection with litigation Seaboard and other timber companies had initiated. The contract eventually expired on December 28, 1985. At the time the contract terminated, Seaboard had partially performed. It had constructed all of the specified roads and had harvested 323 mbf of timber from the road rights-of-way. Seaboard had not cut any other timber in the nine harvesting units, however. On January 15,1986, the contracting officer notified Seaboard by letter that the contract had terminated uncompleted, and that the remaining timber would be resold in accordance with the terms of the contract. The contract sets out at Provision B9.4, “Failure to Cut,” the formula for calculation of damages triggered by Seaboard’s failure to cut the timber: Damages due ... shall be the amount by which Current Contract Value[,] plus the cost of resale, less any effective Purchaser Credit remaining at the time of termination, exceeds the resale value at new Bid Rates. If there is no resale, damages shall be determined by subtracting the value established by said appraisal from the difference between Current Contract Value and Effective Purchaser Credit. In ruling on earlier motions for summary judgment in these consolidated cases, the court held that Paragraph C9.4, the successor paragraph to B9.4, is the starting point for damages calculations. Seaboard, 41 Fed. Cl. at 411-12. We rejected the timber companies’" }, { "docid": "17685927", "title": "", "text": "resale bidders) were altered to such an extent by the Forest Service that the government is precluded from seeking damages for breach. It is useful at this point to offer a brief description of the major components of and the bidding process for U.S. Forest Service timber contracts. For each timber contract offered for sale, the Forest Service puts out a “prospectus” describing the timber site and the terms on which the contract is offered. The minimum opening bid price is based on various factors laid out in the prospectus. The main factor in determining the minimum bid price is the Forest Service’s estimate of the type and quantity of trees found on the site (to which it assigns a base price). Added to this base price is an estimate of reforestation costs (also known as “KV” costs). Reforestation costs are the cost of planting new trees to replace those felled by the contractor. The Forest Service performs this task and charges the costs of it to the contractor. The contract also provides for “purchaser credits” which are intended to compensate the contractor for building and maintaining roads on the site. As the roads are built, the contractor will receive a credit against the contact price he owes to the Forest Service. The amount of credit awarded for a set amount of road is laid out in the contract. The prospectus also sets the length of time which the contractor will be allowed to complete performance of the contract. For some of the original and most of the resold contracts at issue in the five cases before the court, the prospectus also stated that a certain percentage of the bid price was due up front, as a down payment, and that an additional percentage of the bid price was due at a date before the contract was completed (a “mid payment”). The contract terms laid out in the prospectus and those in the final contract are not open to negotiation. This court has in the past held that Forest Service timber contracts are contracts of adhesion. See, e.g., Everett Plywood" }, { "docid": "21374836", "title": "", "text": "things) to purchase, cut, and remove \"Included Timber”. The Big Burn timber sale had been proposed in 1970 and entered on the Clearwater Ranger District’s 5-year sales program; the proposed sale was scheduled for sale in fiscal year 1975 with an estimated volume of 5,000 MBF (thousand board feet). A major portion of the proposed sale area had been previously logged. Prior to and at the time of advertisement of the proposed Big Burn timber sale, market conditions were depressed, and appraisal data indicated that the proposed sale would be a deficit sale. Where an appraisal develops less than 75 percent of normal profit, before the Forest Service can advertise the prospective timber sale, a prospective purchaser must request in writing that the sale be advertised. In April 1975, after Forest Service notification to several prospective purchasers, plaintiff requested that the proposed Big Burn timber sale be advertised as scheduled. Prior to June 9, 1975, the Forest Service provided to prospective purchasers, including plaintiff, an advertisement, a prospectus, and a bid form concerning the proposed Big Burn timber sale. Among other things, the advertisement (as amended prior to June 9,1975) stated in substance that the proposed sale involved an estimated 4,690 MBF of timber; that applicable purchaser road credits were $166,194; that the sale was \"in deficit”; and that full information concerning the timber, the conditions of sale, and the submission of bids should be obtained from the District Ranger, Clearwa-ter Ranger District, or the Forest Supervisor. The phrase \"in deficit” indicated to prospective purchasers that the proposed sale did not have sufficient value to realize a normal profit as calculated under the Forest Service’s appraisal system. When a proposed timber sale is \"in deficit”, the proposed contract contains no payment mechanism for recovery of estimated road construction costs at advertised rates; a prospective purchaser has apparently to decide whether or not the sale is economically feasible in order to recover his operating costs. Among other things, the Big Burn timber sale prospectus advised prospective purchasers that the sale area, and a sample contract, should be inspected before submitting a" }, { "docid": "17372675", "title": "", "text": "frustrating the primary purpose of the contract. Everett also presents claims seeking recovery with interest for itself and its subcontractor. Lastly, Everett attacks the trial judge’s report as motivated by prejudice. I Facts Everett was a manufacturing cooperative located in Everett, Washington. It produced plywood from hardwood and softwood timber purchased in the Puget Sound area. Everett has since undergone liquidation for reasons not connected with this case. In 1970 Everett was the high successful bidder on a contract for the sale of standing timber located in the Mount Baker National Forest (hereinafter ARM sale or contract). Before setting the minimum acceptable bid on this contract, National Forest Service (NFS) staff prepared the sale between 1967 and 1969. A “cruise” or systematic sampling of the timber within the sale area was made to estimate the quantity and quality of the timber to be sold within the specified geographic area of four units. The contract also specified the bidder was to construct 3.2 miles of permanent timber access roads as designated by the NFS. The NFS would then pay for such designated roads by $159,011 worth of purchaser road credits which would be applied by the purchaser against the agreed purchase price of the timber, or “stumpage.” After completing the cruise, the NFS followed the appraisal theory and principles established in the NFS Manual to determine minimum acceptable bid prices for the various types of timber contained in the sale. Such an appraisal is based on the proposition that the worth of the timber to the government — or “stumpage” — is the “selling value” of end products such as lumber and plywood manufactured from that timber minus both the costs of production (including specified road costs) and an allowance for profit and risk to the purchaser. The NFS estimates a “conversion return” which is the selling value minus cost of production, and this “conversion” is then divided between a projected profit to the purchaser and the indicated stumpage to the government. Indicated stumpage, therefore, is the projected residual which develops after all costs and purchaser profit have been deducted from" }, { "docid": "11964158", "title": "", "text": "have been deducted from estimated selling values. 36 C.F.R. § 223.4. To determine the minimum acceptable bid, the NFS then adds the cost of the roads specified in the contract to the indicated stumpage. The bidding process then determines the contract rate or actual stumpage. During the course of performance as the timber is logged, the purchaser pays the contract rate \"stumpage” less the purchaser credits allowed for the specified road costs. The ARM contract was advertised on December 21,1969, for bids on an estimated total of 7,400 thousand board feet (MBF) comprised of 1,500 MBF Douglas-fir, 4,700 MBF western hemlock, and 1,200 MBF cedar. The NFS estimated the selling price per MBF for Douglas-fir at $167.45; for hemlock at $123.17; and for cedar at $110.79. Total production costs per MBF were estimated at $118.61 for Douglas-fir; $94.78 for hemlock; and $97.39 for cedar. Specified road costs for each species were $21.49 per MBF. Indicated stumpage per MBF (selling value less costs) was $29.56 MBF for Douglas-fir; $14.21 for hemlock; and $.66 for cedar. The minimum bid price (indicated stumpage plus road costs) was $51.05 MBF for Douglas-fir; $35.70 for hemlock; and $22.15 for cedar. Everett bid $51.55 per MBF for the Douglas-fir and the minimum acceptable bid for the remaining species, and the NFS awarded the contract to Everett as high bidder. The contract was one of \"adhesion” in that bidders had to accept the contract terms the government wrote into the invitation, only the price being open for the bidder to specify. Neither the contract nor the applicable agency regulations provided for cancellation of the contract for environmental reasons. On April 27, 1970, Everett entered a subcontract with Miller Shingle Co., Inc. (Miller), whereby Miller was to perform all logging, road construction, road maintenance, and other timber removal services. For logging services, Everett agreed to pay Miller $40.00 per MBF for merchantable delivered timber. For Miller’s road construction services, Everett agreed to pay Miller $190,500 — an addition of $31,489 to the original $159,011 worth of purchaser road credits. Miller was obligated to accept any adjustments in the" } ]

[ { "docid": "12549398", "title": "", "text": "it appears from the Plaintiff’s Complaint that Defendant contracted with Plaintiff to supply legal services in this state. The case of Crescent Corporation v. Martin, 443 P. 2d 111 (Okl.1968), cited by Defendant is distinguishable for in that ease the contract was to perform services in another state, not Oklahoma. It is not clear from what the parties have submitted where the contract in the case at bar was consummated or whose laws are to be considered in enforcing the same or if payments on the same were made from Oklahoma but, as Defendant contracted (according to Plaintiff) to supply his legal services at a hearing to be conducted in Oklahoma, it is deemed for the present that 12 Oklahoma Statutes 1701.03(2) provides for long arm service in this type of situation and that the minimum contacts requirement of International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, 161 A.L.R. 1057, and the requirement that the subject contract have substantial connections with Oklahoma as announced in McGee v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223, appear to be satisfied. Thus, Defendant’s Motion as to jurisdiction is overruled without prejudice to being reasserted at a later time. As to the claim of improper venue, Defendant relies on 28 U.S.C. § 1404(a). Under this statute, the burden is on the Defendant to establish his right to the requested transfer. Texas Gulf Sulphur Company v. Ritter, 371 F.2d 145 (Tenth Cir. 1967). In making this determination, the Court is vested with reasonable discretion and unless the balance is strongly in favor of the Defendant, the Plaintiff’s choice of forum should rarely be disturbed. Chicago, Rock Island and Pac. R. Co. v. Hugh Breeding, Inc., 232 F.2d 584 (Tenth Cir. 1956). The Court concludes that the Defendant has failed to sustain his burden regarding his claim of improper venue which is treated as a motion to transfer. See Chicago, Rock Island and Pac. R. Co. v. Hugh Breeding, Inc., supra; Jenkins v. Wilson Freight Forwarding Co., 104 F.Supp. 422 (S.D.N.Y. 1952)." } ]

[ { "docid": "21243612", "title": "", "text": "revised the Judicial Code and enacted Sec. 1404(a). This section of Title 28 provides that for the convenience of the parties and witnesses, and in the interest of justice, a civil action may be transferred to any district or division where it might have been brought originally. The first Supreme Court construction of Sec. 1404(a) is found in a series of cases decided on May 31, 1949. Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207; Kilpatrick v. Texas & Pacific R. Co., 337 U.S. 75, 69 S.Ct. 953, 93 L.Ed. 1223. Included in the cases handed down on that date was United States v. National City Lines, 337 U.S. 78, 69 S.Ct. 955, 93 L.Ed. 1226, in which the court held that the section applied to antitrust actions. The relief sought by the defendants is within the provisions of the statute since both defendants have their principal places of business in the Eastern District of Michigan and consequently the action could have been brought in that district. Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254, decided June 13, 1960. In determining whether a case should be transferred to another district under the provisions of Sec. 1404(a), the right to determine the balance of convenience between the litigants is within the sound discretion of the District Court and 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, 67 S.Ct. 839, 91 L.Ed. 1055; Sun Oil Co. v. Lederle, 6 Cir., 199 F.2d 423; Morehead v. Barksdale, 4 Cir., 263 F.2d 117; Fannin v. Jones, 6 Cir., 229 F.2d 368. The statute requires the moving party to show more than a limited degree of added convenience for trying the case in a different jurisdiction. It requires a strong and preponderant balance in favor of the defendant before the plaintiff’s choice of a forum will be denied. In considering the motion the court is limited to the three factors specifically mentioned in the statute, namely, convenience of" }, { "docid": "23639520", "title": "", "text": "of this power is committed to the sound discretion of the trial court in the light of all the circumstances of the case and its judgment will be reversed only where the appellate court finds there has been an abuse of discretion. We can find no such abuse of discretion in this case. Affirmed. . The agreement with Teter was actually entered into on appellant’s behalf by I-Iorkey-Moore Associates but HorkeyMoore is a division of Houston and a trade-name used by it. We will therefore refer to Houston as the contracting party. . 1 Moore’s Federal Practice, § 0.142 [5. — 3], p.p. 1489-1503; 1 Barron and Holtzoff, Federal Practice and Procedure, § 80, p.p. 384-394; 3 Cyclopedia of Federal Procedure, §§ 4.13, 4.14, p.p. 29-39. . 1 Moore’s Federal Practice, § 0.142 [5.-3], p.p. 1497-1500. . See also Jaftex Corporation v. Randolph Mills, Inc., 2 Cir., 282 F.2d 508. . Citing, International Shoe Co. v. Washington, supra; Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U.S. 516, 43 S.Ct. 170, 67 L.Ed. 372; 18 Fletcher Cyclopedia Corporations, §§ 8711, 8713, 8715. . Electrical Equipment Company v. Daniel Hamm, 8 Cir., 217 F.2d 656, 663, and authorities therein cited. . “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.” . 1 Moore’s Federal Practice, § 0.145 [5], p. 1777. . Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055; Chicago, Rock Island & Pacific R. Co. v. Hugh Breeding, Inc., 10 Cir., 232 F.2d 584; Headrick v. Atchison, T. & S. F. Ry. Co., 10 Cir., 182 F.2d 305. . Chicago, Rock Island & Pacific R. Co. v. Hugh Breeding, Inc., 10 Cir., 247 F.2d 217, certiorari dismissed, 355 U.S. 880, 78 S.Ct. 138, 2 L.Ed.2d 107; Chicago, Rock Island & Pacific R. Co. v. Hugh Breeding, Inc., 10 Cir., 232 F.2d 584." }, { "docid": "16072473", "title": "", "text": "have been voluntarily assumed.” Burger King, 471 U.S. at 474, 105 S.Ct. 2174. B. A party moving to transfer a case bears the burden of showing that the existing forum is inconvenient. Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1515 (10th Cir.1991). Among the factors to be considered are: the plaintiffs choice of forum; the accessibility of witnesses and other sources of proof, including the availability of compulsory process to insure attendance of witnesses; the cost of making the necessary proof; questions as to the enforceability of a judgment if one is obtained; relative advantages and obstacles to a fair trial; difficulties that may arise from congested dockets; the possibility of the existence of questions arising in the area of conflict of laws; the advantage of having a local court determine questions of local law; and all other considerations of a practical nature that make a trial easy, expeditious and economical. Chrysler, 928 F.2d at 1516 (quoting Texas Gulf Sulphur Co. v. Ritter, 371 F.2d 145, 147 (10th Cir.1967)). In deciding motions for transfer of venue, I must give an “individualized, case-by-case consideration of convenience and fairness.” Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988). Cases may be transferred to prevent waste of time, energy, and money, unnecessary inconvenience, and expense. Van Dusen v. Barrack, 376 U.S. 612, 616, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964); Frontier Airlines, Inc. Retirement Plan for Pilots v. Security Pacific Nat. Bk., N.A., 696 F.Supp. 1403, 1406 (D.Colo.1988). Unless the balance of considerations is strongly in favor of the movant, the plaintiffs choice of forum should rarely be disturbed. William A. Smith Contracting Co., Inc. v. Travelers Indem. Co., 467 F.2d 662, 664 (10th Cir.1972). III. A. 1. Defendants first argue that Plaintiffs cannot establish specific personal jurisdiction over them. Specifically, Defendants contend that Plaintiffs cannot establish that their cause of action is based upon the defendant’s contacts with Colorado. Plaintiffs respond that the two cease and desist letters sent by Ms. Lin-damood’s attorney to Plaintiffs’ attorney evidence such a nexus and that" }, { "docid": "23360614", "title": "", "text": "two principal witnesses will be residents of one or the other of those states. In opposing the motion, Smith named two witnesses, one of whom was in Kansas and the other in Colorado or California. • The movant under § 1404(a) has the burden of establishing that the suit should be transferred. Unless the balance is strongly in favor of the movant the plaintiff’s choice of forum should rarely be disturbed. The transfer is within the discretion of the trial court and its action will be disturbed on appeal only when there has been an abuse of discretion. Houston Fearless Corp. v. Teter, 10 Cir., 318 F.2d 822, 827-828, and Texas Gulf Sulphur Co. v. Ritter, 10 Cir., 371 F.2d 145, 147. The trial court weighed the factors bearing on transfer, see e. g. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-509, 67 S.Ct. 839, 91 L.Ed. 1055, a forum non conveniens case, and held that DRPA had not sustained the burden of establishing that a transfer should be ordered. In so holding the trial court did not abuse its discretion and its action must stand. We turn to the merits. The complaint alleges that both Smith and DRPA were named insured under the policy; that Smith employees were engaged in “cutting torch” operations when the fire occurred; that Smith, insurer, and DRPA have admitted in writing the fact of coverage and the amount of the insurer’s obligation to pay; and that such sum has not been paid. Disputes arose between Smith and DRPA over the performance of the contracts and the amounts due thereunder. The complaint says that before the disputes were resolved, DRPA withheld from Smith payments, “including sufficient money withheld as security for said damage claim of $33,500.00.” Later an “agreement, accord and satisfaction” was made between Smith and DRPA whereunder DRPA paid Smith $500,000. The agreement contained mutual releases. An affidavit of the chief executive officer of Smith submitted in opposition to the transfer motion included the statement that “one of the claims [in dispute] was a claim by the Delaware River Port Authority against" }, { "docid": "7058904", "title": "", "text": "the defendant or to consider the activities of the plaintiff as well. Compare, e.g., Jenkins Brick Co., 321 F.3d at 1371-72 (relying solely on the relevant activities of the defendant) and Woodke v. Dahm, 70 F.3d 983, 985 (8th Cir.1995) (noting that “by referring to events and omissions giving rise to the claim, Congress meant to require courts to focus on relevant activities of the defendant, not of the plaintiff” (internal quotation marks omitted)), with Uffner v. La Reunion Francaise, S.A., 244 F.3d 38, 42 n. 6 (1st Cir.2001) (declining to limit the review of the events or omissions to the actions of the defendant); Bramlet, 141 F.3d at 263-64 (same); and Cottman, 36 F.3d at 294 (same). Although we have weighed in on this circuit split in a non-binding order and judgment, Goff v. Hackett Stone Co., No. 98-7137, 1999 WL 397409, at *1 (June 17, 1999), we need not definitively answer this question at this time. Even restricting our focus to Bartile's activities, we conclude that the substantial events material to the claims occurred in the District of Wyoming. . The parties do not dispute that the District of Utah is a district where this action “might have been brought.” . For more than five decades, we have required the movant to demonstrate that the balance of factors \"strongly favors” a transfer of venue under § 1404(a). See, e.g., Scheidt, 956 F.2d at 965; Wm. A. Smith Contracting Co. v. Travelers Indem. Co., 467 F.2d 662, 664 (10th Cir.1972); Tex. Gulf Sulphur Co. v. Ritter, 371 F.2d 145, 147 (10th Cir.1967); Hous. Fearless Corp. v. Teter, 318 F.2d 822, 827-28 (10th Cir.1963); Chi., Rock Island & Pac. R.R. Co. v. Hugh Breeding, Inc., 232 F.2d 584, 587 (10th Cir.1956); Headrick v. Atchison, Topeka & Santa Fe Ry. Co., 182 F.2d 305, 310 (10th Cir.1950). Although we apply this standard to motions to transfer venue under § 1404(a), we borrowed the standard verbatim from a case applying the common-law doctrine of forum non conveniens. Headrick, 182 F.2d at 310 (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508," }, { "docid": "21407095", "title": "", "text": "the suit; and (9) the time, cost, and ease in which the trial can be conducted, and all other practical considerations relative to the trial. Lindloff v. Schenectady Intern., 950 F.Supp. 183, 185 (E.D.Tex.1996); Fletcher v. Southern Pac. Transp. Co., 648 F.Supp. 1400, 1401 (E.D.Tex.1986) (collecting authorities). The district court’s determination to transfer a case will be reversed only for an abuse of discretion. McKethan v. Texas Farm Bureau, 996 F.2d 734, 738 (5th Cir.1993). B. Analysis (1) Plaintiffs’choice of forum Plaintiffs claim that Reed’s exposure occurred at the Borger facility, and they do not challenge the propriety of venue in the Northern District. Plaintiffs argue, however, that their choice of forum should receive both “great deference” and “high esteem” from the trial court.. Pis.’ Resp. to Def.’s Mot. to Transfer Venue (hereinafter “Pis.’ Resp.”) at 3 (citing Emrick v. Calcasieu Kennel Club, Inc., 800 F.Supp. 482 (E.D.Tex. 1992)). Plaintiffs argue that their choice of forum should not be disturbed unless the balance of factors greatly favors the defendant. Pis.’ Resp. at 4 (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) and collecting authorities). The court disagrees. First, the deference given to a plaintiffs choice of forum is greater in a forum non conveniens transfer than it is in a § 1404(a) transfer. Continental Airlines v. American Airlines, 805 F.Supp. 1392, 1395 (S.D.Tex.1992); see also Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S.Ct. 544, 99 L.Ed. 789 (1955) (district courts have more discretion to transfer cases under § 1404(a) than they do to dismiss cases for forum non conveniens). For example, in Box v. Ameritrust Texas, N.A., 810 F.Supp. 776, 780-81 (E.D.Tex.1992), the court held that great deference was to be given to a plaintiffs choice of forum in a § 1404(a) ease. However, Box relied on the Supreme Court’s opinion in Gulf Oil v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), which was & forum non conveniens case. The Supreme Court has since clarified the fact that transfers under § 1404(a) should be examined under" }, { "docid": "8317160", "title": "", "text": "documents. Plaintiff, by contrast, points out that most of the activities occurred in New York, that Texaco is headquartered in White Plains, that its directors who will be called as witnesses are not Texas residents, and that Sid Bass maintains an apartment in New York City. As defendants admit, transferrence of a civil action under section 1404(a) lies in the sound discretion of the district court. The court deems that moving the case now to Texas would only shift the inconvenience from the Bass defendants to Seagoing, a corporation headquartered in Brooklyn, New York. “Where the balance of convenience is in equipoise, plaintiff's choice of forum should not be disturbed.” Ayers v. Arabian American Oil Co., 571 F.Supp. 707, 709 (S.D.N.Y.1983). It is not as though nothing substantial to this case occurred in New York. Plaintiff has alleged, as stated, that the negotiations and discussions between the Bass defendants and Texaco and its directors took place in the New York area. Texaco is headquartered in the New York Metropolitan area, and as plaintiff contends, will have to produce documents for the case. The burden of showing the desirability of a transfer is on the moving party. Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218 (2d Cir.1978), cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 (1979). Of course, a “plaintiff may not, by choice of an inconvenient forum, ‘vex,’ ‘harass,’ or ‘oppress’ the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But 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, 843, 91 L.Ed. 1055 (1947). Given the totality of facts in the case, the court does not believe that the defendants have sufficiently met their burden to warrant the court’s granting their motion to move the case to Texas. Defendants’ motion to transfer venue is denied. VII. CONCLUSION For the reasons discussed above, all of defendants’ motions are denied. An order to" }, { "docid": "23360613", "title": "", "text": "and furnished to DRPA a certificate of insurance. Employees of Smith caused a fire which damaged the bridge. Policy coverage is admitted and the sum due is agreed to be $33,500. Disputes arose between Smith and DRPA over the amount due under the contracts, and a settlement agreement was made by them. The insurer refused to pay either Smith or DRPA. Smith then brought this suit in Kansas. DRPA answered that the money was due to it. The insurer by way of a counterclaim against Smith and a cross-claim against DRPA deposited $33,500 into the registry of the Kansas court and asked it to determine whether Smith or DRPA was entitled thereto. The transfer motion of DRPA is under 28 U.S.C. § 1404(a) on the basis of convenience of parties and witnesses. Plaintiff has its principal place of business in Kansas. DRPA is the joint creature of Pennsylvania and New Jersey. The fire occurred on a bridge connecting those states. The settlement agreement between Smith and DRPA was executed in Pennsylvania. DRPA says that its two principal witnesses will be residents of one or the other of those states. In opposing the motion, Smith named two witnesses, one of whom was in Kansas and the other in Colorado or California. • The movant under § 1404(a) has the burden of establishing that the suit should be transferred. Unless the balance is strongly in favor of the movant the plaintiff’s choice of forum should rarely be disturbed. The transfer is within the discretion of the trial court and its action will be disturbed on appeal only when there has been an abuse of discretion. Houston Fearless Corp. v. Teter, 10 Cir., 318 F.2d 822, 827-828, and Texas Gulf Sulphur Co. v. Ritter, 10 Cir., 371 F.2d 145, 147. The trial court weighed the factors bearing on transfer, see e. g. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-509, 67 S.Ct. 839, 91 L.Ed. 1055, a forum non conveniens case, and held that DRPA had not sustained the burden of establishing that a transfer should be ordered. In so holding the" }, { "docid": "15770636", "title": "", "text": "placed great reliance upon the availability and convenience of witnesses in Trinidad. Assuming that witness inconvenience can be considered an “unusually extreme circumstance,” Nor-cross has not sustained its burden of proving that this circumstance exists. A party seeking to transfer a case from one United States court to another for the convenience of witnesses must identify the key witnesses to be called and must make a general statement of what their testimony will cover. Jenkins v. Wilson Freight Forwarding Co., 104 F.Supp. 422, 424 (S.D.N.Y.1952). The burden is upon it to give the names and locations of potential witnesses and the substance of their testimony. National Super Spuds v. New York Mercantile Exchange, 425 F.Supp. 665, 668 (S.D.N.Y.1977). Sufficient information must be included in its affidavits to establish that the named witnesses are key witnesses who need to be called and that their testimony is material. Texas Gulf Sulphur Co. v. Ritter, 371 F.2d 145, 148 (10th Cir. 1967); Chicago, R. I. & P. R. R. v. Hugh Breeding, Inc., 232 F.2d 584, 588 (10th Cir. 1956); Sinclair Oil Corp. v. Union Oil Co., 305 F.Supp. 903, 904 (S.D.N. Y.1969); Riso Kagaku Corp. v. A. B. Dick Co., 300 F.Supp. 1007, 1010 (S.D.N.Y.1969); Baksay v. Rensellear Polytech Institute, 281 F.Supp. 1007, 1010 (S.D.N.Y.1968); Polychrome Corp. v. Minnesota Mining and Manufacturing Co., 259 F.Supp. 330, 335 (S.D.N.Y.1966); Peyser v. General Motors Corp., 158 F.Supp. 526, 529-30 (S.D.N.Y. 1958); National Tea Co. v. The Marseille, 142 F.Supp. 415, 416 (S.D.N.Y.1956); Goodman v. Southern Ry., 99 F.Supp. 852, 855 (S.D.N.Y.1951). Surely, a defendant who seeks to deprive an American plaintiff of access to American courts must make at least as great a showing. As this Court has stated: In any situation, the balance must be very strongly in favor of the defendant, before the plaintiff’s choice of forum should be disturbed, . . . and the balance must be even stronger when the plaintiff is an American citizen and the alternative forum is a foreign one .... Olympic Corp. v. Societe Generale, supra, 462 F.2d at 378. Two short, almost cursory, affidavits of" }, { "docid": "20343277", "title": "", "text": "0.145 [4.-2], l.c. 1598, ¶ 0.145[5], l.c. 1615-1616 (2d ed. 1979); 15 Wright, Miller & Cooper, Federal Practice And Procedure § 3844, l.c. 209 (1976); Kaufman, Observations on Transfers Under Section 1404(a) of the New Judicial Code, 10 F.R.D. 595, l.c. 603 (1951); Annot., 7 A.L.R.Fed. 9, l.c. § 4 (1971). Exercise of the power to transfer authorized by § 1404(a) is committed to the sound discretion of the district court. Layne-Minnesota p.r., Inc. v. Singer Company (C.A. 8 1978) 574 F.2d 429, l.c. 434; Plum Tree, Inc. v. Stockment (C.A. 3 1973) 488 F.2d 754, l.c. 756; Texas Gulf Sulphur Company v. Ritter (C.A. 10 1967) 371 F.2d 145, l.c. 147; 1 Moore’s Federal Practice ¶ 0.145[5], l.c. 1619 (2d ed. 1979); 15 Wright, Miller & Cooper, Federal Practice And Procedure § 3847, l.c. 235 (1976). “The combination and weight of factors requisite to a given result cannot be cataloged. At stake is the art of judging.” 1 Moore’s Federal Practice ¶ 0.145[5], l.c. 1619-1620 (2d ed. 1979). See also 15 Wright, Miller & Cooper, Federal Practice And Procedure § 3847, l.c. 235 (1976). Although the criteria listed by the Supreme Court of the United States in Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), remain valid, a district court now has greater discretion in ordering a transfer under § 1404(a) than it had under the analogous common law doctrine of forum non conveniens under which dismissal without prejudice resulted. Norwood v. Kirkpatrick, 349 U.S. 29, l.c. 32, 75 S.Ct. 544, l.c. 546, 99 L.Ed. 789, l.c. 793 (1955); 1 Moore’s Federal Practice ¶ 0.145[5], l.c. 1632-1634 (2d ed. 1979); 15 Wright, Miller & Cooper, Federal Practice And Procedure § 3847, l.c. 238-239 (1976). The moving party has the burden of proof, and must make a convincing showing of the right to transfer. Factors Etc., Inc. v. Pro Arts, Inc. (C.A. 2 1978) 579 F.2d 215, l.c. 218, cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 (1979); Texas Gulf Sulphur Company v. Ritter, supra, (C.A. 10 1967) 371 F.2d" }, { "docid": "7058905", "title": "", "text": "occurred in the District of Wyoming. . The parties do not dispute that the District of Utah is a district where this action “might have been brought.” . For more than five decades, we have required the movant to demonstrate that the balance of factors \"strongly favors” a transfer of venue under § 1404(a). See, e.g., Scheidt, 956 F.2d at 965; Wm. A. Smith Contracting Co. v. Travelers Indem. Co., 467 F.2d 662, 664 (10th Cir.1972); Tex. Gulf Sulphur Co. v. Ritter, 371 F.2d 145, 147 (10th Cir.1967); Hous. Fearless Corp. v. Teter, 318 F.2d 822, 827-28 (10th Cir.1963); Chi., Rock Island & Pac. R.R. Co. v. Hugh Breeding, Inc., 232 F.2d 584, 587 (10th Cir.1956); Headrick v. Atchison, Topeka & Santa Fe Ry. Co., 182 F.2d 305, 310 (10th Cir.1950). Although we apply this standard to motions to transfer venue under § 1404(a), we borrowed the standard verbatim from a case applying the common-law doctrine of forum non conveniens. Headrick, 182 F.2d at 310 (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947)). The Fifth Circuit has suggested that this standard is too stringent. In re Volkswagen of Am., Inc., 545 F.3d 304, 312-15 (5th Cir.2008). In Volkswagen, the Fifth Circuit concluded that the forum non conveniens dismissal standard \"give[s] inordinate weight to the plaintiffs' choice of venue,” id. at 314-15, 100 S.Ct. 559, because § 1404(a) \" permit[s] courts to grant transfers upon a lesser showing of inconvenience,’ ” id. at 313, 100 S.Ct. 559 (quoting Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S.Ct. 544, 99 L.Ed. 789 (1955)); see 15 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3848, at 161 (3d ed.2007) (noting that courts frequently cite the strongly favor language \"without recognizing that the original source of this theory was in connection with the forum non conveniens doctrine and that application of this standard to Section 1404(a) is doubtful”). The Fifth Circuit instead requires a movant to \"demonstrate[ ] that the transferee venue is clearly more convenient.” Volkswagen, 545" }, { "docid": "3372752", "title": "", "text": "to North Dakota. See 28 U.S.C. § 1404(a). Whether or not this cause' should be transferred is a question of balancing the conveniences of the parties and their witnesses. B. J. McAdams, Inc. v. Boggs, 426 F.Supp. 1091, 1103-04 (E.D.Pa. 1977); Arnold v. Smith Motor Co., Brookfield, Missouri, 389 F.Supp. 1020, 1023-24 (N.D.Iowa 1974). Yet it is well settled in this Circuit that “[pjlaintiff’s privilege to choose, or not to be ousted from, his chosen forum is highly esteemed.” Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir. 1966); Rodriguez v. Pan American Life Ins. Co., 311 F.2d 429, 434 (5th Cir. 1962) vacated on other grounds, 376 U.S. 779, 84 S.Ct. 1130, 12 L.Ed.2d 82 (1964). Accord Gardner Engineering Corp. v. Page Engineering Co., 484 F.2d 27, 33 (8th Cir. 1973); Kisko v. Penn Central Transportation Co., 408 F.Supp. 984, 986 (M.D.Pa.1976); Jones v. United States, 407 F.Supp. 873, 877 (N.D. Tex.1976). Therefore, the Plaintiffs’ choice will not be disturbed unless the Court finds the balance to be strongly in favor of the Defendants. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); Rodriguez v. Pan American Life Ins. Co., 311 F.2d 429, 432 (5th Cir. 1962) vacated on other grounds, 376 U.S. 779, 84 S.Ct. 1130, 12 L.Ed.2d 82 (1964). Accord Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970), cert. denied 401 U.S. 910, 91 S.Ct. 871, 27 L.Ed.2d 808 (1971). For the following reasons, the Court finds the balance to be in favor of the Plaintiffs. The Plaintiffs are two migrant farm worker families and the Defendants are two farmers residing in North Dakota. It would appear to be less burdensome on the Defendants to defend in this district than it would be on the Plaintiffs to prosecute their cause in North Dakota. Even if a trial in the Southern District of Texas would burden the Defendants, the uncontroverted fact remains that they chose this district “as the convenient location to transact business with the Plaintiffs.” Wahl v. Foreman, 398 F.Supp. 526, 529 (S.D.N.Y." }, { "docid": "13342460", "title": "", "text": "Federal Practice and Procedure § 3844, at 211 (1976); see generally 28 U.S.C. § 1406(a) (1976). The Court notes, however, that lack of jurisdiction over Beech, along with other circumstances, strongly counsels the transfer of both of these cases to the District of Kansas. “A motion for transfer under 28 U.S.C. § 1404(a) is addressed to the discretion of the trial court . . . .” Layne-Minnesota p.r., Inc. v. Singer Co., 574 F.2d 429, 434 (8th Cir. 1978); see Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 504-8, 67 S.Ct. 839, 91 L.Ed. 1055, 1060-2 (1947). Section 1404(a) sets forth three factors to be considered in ruling a motion for transfer: “For the [1] convenience of the parties and [2] witnesses, [3] 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.” 28 U.S.C. § 1404(a) (1976) (bracketed numbers added). These considerations, however, are not exhaustive, see Securities & Exch. Comm. v. Page Airways, Inc., 464 F.Supp. 461, 463 (D.D.C.1978), and among additional factors are: “practical problems that make trial of a ease easy, expeditious and inexpensive”, Gulf Oil Corp. v. Gilbert, supra, 330 U.S. at 508, 67 S.Ct. at 843, 91 L.Ed. at 1062, such as access to sources of proof and availability of compulsory process for witnesses and expenses attendant to the production of witnesses; “the relative advantages and obstacles to fair trial”, J. F. Pritchard & Co. v. Dow Chem. of Canada, Ltd., 462 F.2d 998, 1000 (8th Cir. 1972) (opinion per Justice Clark); and “the relative congestion of the calendars of the potential transferee and transferor courts.” Securities & Exch. Comm. v. Page Airways, Inc., supra, 464 F.Supp. at 463. The Court recognizes that the doctrine of forum non conveniens embodied in § 1404(a) does not authorize a court to override a plaintiff’s choice of forum, unless a balance of relative considerations, such as those enumerated above, tips toward the defendant. See Augustin v. Mughal, 521 F.2d 1215, 1217 (8th Cir. 1975); Shutte v. Armco Steel Corp., 431 F.2d 22," }, { "docid": "23284419", "title": "", "text": "find error in the refusal to transfer [under § 1404(a)], it must appear that there was a clear abuse of discretion by the trial judge.” Metropolitan Paving Co. v. International Union of Operating Eng’rs, 439 F.2d 300, 305 (10th Cir.), cert. denied, 404 U.S. 829, 92 S.Ct. 68, 30 L.Ed.2d 58 (1971); see Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1515, 1516 (10th Cir.1991). Secondly, “party moving to transfer a case pursuant to § 1404(a) bears the burden of establishing that the existing forum is inconvenient.” Chrysler Credit Corp., 928 F.2d at 1515. Finally, “[ujnless the balance is strongly in favor of the movant the plain tiff’s choice of forum should rarely be disturbed.” William A. Smith Contracting Co. v. Travelers Indem. Co., 467 F.2d 662, 664 (10th Cir.1972); see Texas E. Transmission Corp. v. Marine Office-Appleton & Cox Corp., 579 F.2d 561, 567 (10th Cir.1978) (“Plaintiff’s choice [of forum] is also given considerable weight.”). Defendant seeks to overcome these principles collectively favoring the district court’s ruling by asserting that (1) the majority of contemplated witnesses resided in Florida, (2) the pertinent documentary evidence was located primarily in Florida, (3) the conduct complained of, which occurred in Florida, was to be assessed under Florida substantive law, and (4) for all these reasons, the less expensive and more convenient forum for the litigation was in Florida. See generally Chrysler Credit Corp., 928 F.2d at 1516 (factors pertinent to § 1404(a) determina tion) (quoting Texas Gulf Sulphur Co. v. Ritter, 371 F.2d 145, 147 (10th Cir.1967)). Defendant identified eight Florida witnesses that he expected to call, six to testify regarding the work done in the IME case generally and two regarding his efforts on behalf of Plaintiffs in particular. R.Vol. I tab 41 (Defendant’s affidavit). While, at least on the conclusory assertions made in support of Defendant’s motion, the latter witnesses may have had pertinent testimony to present, “nothing has been submitted ... to indicate the quality or materiality of the testimony of said witnesses[,] [n]or has Defendant shown that any such witnesses [were] unwilling to come to trial" }, { "docid": "20995928", "title": "", "text": "television industries. (7) The issues raised by the pleadings will require the presentation of evidence-through witnesses residing in New York and also through books, records, negatives, and film prints located in New York. Approximately fifty of these witnesses are neither employed by nor controlled by plaintiff. Transfer would cause extreme hardship to plaintiff and seriously interfere with its presentation of proof at trial. Under section 1404(a), the Court may transfer an action to a more suitable forum when the plaintiff’s choice of forum, although permitted by a venue statute, probably will work a substantial hardship upon the defendant and the witnesses, which hardship cannot be justified by a showing of countervailing convenience or necessity on the plaintiff’s part. United States v. General Motors Corporation, D.C.S.D.N.Y.1960, 183 F.Supp. 858, 860. The Court must weigh the convenience of trial in New York as against trial in West Virginia. Peyser v. General Motors Corporation, D.C.S.D.N.Y.1958, 158 F.Supp. 526. Although a lesser showing of inconvenience is required for transfer under section 1404(a) than was formerly required for dismissal under the doctrine-of forum non conveniens (Norwood v. Kirkpatrick, 1955, 349 U.S. 29, 75 S.Ct. 544, 99 L.Ed. 789), the plaintiff’s choice of forum should not be disturbed unless the balance of convenience and justice is strongly in favor of the defendant. Lykes Bros. Steamship Co., Inc. v. Sugarman, 2 Cir., 1959, 272 F.2d 679; United States v. General Motors Corporation, supra; National Tea Company v. The Marseille, D.C.S.D.N.Y.1956, 142 F.Supp. 415; Sokolowska v. National Airlines, Inc., D.C.S.D.N.Y.1954, 154 F.Supp. 376. The burden of showing that the convenience of the parties and the interests of justice would be better served in the other district is upon the movant. Peyser v. General Motors Corporation, supra; Robbins Music Corp. v. Alamo Music, Inc., D.C.S.D.N.Y.1954, 119 F.Supp. 29; Markantonatos v. Maryland Drydock Co., D.C.S.D.N.Y.1953, 110 F.Supp. 862. The criteria to be considered are those expounded in Gulf Oil Corp. v. Gilbert, 1947, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055; Norwood v. Kirkpatrick, supra; Peyser v. General Motors Corporation, supra; United States v. General Motors Corporation, supra. See" }, { "docid": "18219884", "title": "", "text": "further examination. Even if other seamen were to be called as witnesses at trial, their residence would have no bearing on the choice of forum because of the nature of their occupation. Plaintiffs’ contention that they will be inconvenienced upon transfer because they will lose the opportunity to examine the defendant’s agent in New York can be presented to the transferee court for whatever relief, if any, may be appropriate. Finally, plaintiffs’ claim that their selection of a forum is entitled to great weight is erroneous, particularly when no judicially recognized circumstances have been shown to exist which would justify that choice. The motion to transfer is granted. . Cf. St. Paul Fire & Marine Ins. Co. v. American Mail Line, Ltd., 94 F.Supp. 28 (S.D.N.Y.1950). . See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 509, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) ; Saraf v. Chatham Carpet Mills, Inc., 275 F.Supp. 951, 952 (S.D.N.Y.1967) ; Faueette v. Lykes Bros. S. S. Co., 110 F.Supp. 287, 288 (S.D.N.Y.1953) ; Ortiz v. Union Oil Co. of Calif., 102 F.Supp. 492, 493-494 (S.D.N.Y.1952). . Schneider v. Sears, 265 F.Supp. 257, 266-267 (S.D.N.Y.1967) ; Freiman v. Texas Gulf Sulphur Co., 38 F.R.D. 336 (N.D.Ill.1965) ; Axe-Houghton Fund A, Inc. v. Atlantic Research Corp., 227 F.Supp. 521, 523 (S.D.N.Y.1964) ; Rodgers v. Northwest Airlines, Inc., 202 F.Supp. 309, 312 (S.D.N.Y.1962); Cressman v. United Airlines, 158 F.Supp. 404, 407 (S.D.N.Y.1958). . McFarlin v. Alcoa S. S. Co., 210 F.Supp. 793, 795 (E.D.Pa.1962) ; Medich v. American Oil Co., 177 F.Supp. 682, 683 (E.D.Pa.1959). . Schneider v. Sears, 265 F.Supp. 257, 267 (S.D.N.Y.1967); see also Sher v. Johnston, 216 F.Supp. 123, 124 (S.D.N.Y.1963). . See Norwood v. Kilpatrick, 349 U.S. 29, 32, 75 S.Ct. 544, 99 L.Ed. 789 (1965) ; A. Olinick & Sons v. Dempster Bros., Inc., 365 F.2d 439, 444-445 (2d Cir. 1966) ; Sweetheart Plastics, Inc. v. Illinois Tool Works, Inc., 267 F.Supp. 938, 941-942 (S.D.N.Y.1967) ; Oil & Gas Ventures—First 1958 Fund, Ltd. v. Kung, 250 F.Supp. 744, 754 (S.D.N.Y.1966) ; Polaroid Corp. v. Casselman, 213 F.Supp. 379, 381 (S.D.N.Y.1962)." }, { "docid": "21963796", "title": "", "text": "to extend its patent to monopolize unpatented fabrics. All of the other legal issues alleged by Bayly in its complaint have been raised by other parties before the District Court in California. A decision to transfer under 28 U.S.C. § 1404(a) rests entirely in the discretion of the District Judge. Akers v. Norfolk & Western Ry., 378 F.2d 78, 80 (4th Cir. 1967); Houston Fearless Corp. v. Teter, 318 F.2d 822, 828 (10th Cir. 1963). Among the factors considered in determining a motion to transfer venue are: the plaintiff’s right to choose his forum; the convenience of the parties including potential disruption of their business; the convenience of the probable witnesses; the forum where the case can be most expeditiously tried; and the interests of justice* “a term broad enough to cover the particular circumstances of each case.” Schneider v. Sears, 265 F.Supp. 257, 263 (S.D.N.Y. 1967) ; see Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964); Texas Gulf Sulphur Co. v. Ritter, 371 F.2d 145, 147 (10th Cir. 1967). The various factors of convenience have received extensive consideration and we find them inconclusive. Whether the trial is conducted in Denver or in San Francisco there is bound to be inconvenience, expense and problems of logistics to one or the other parties and their witnesses. The record before us is such that there can be no decision that is satisfactory to both sides. We recognize the rule that plaintiff’s choice of forum in an antitrust action should not lightly be set aside, O’Neil Trucks Pty. Ltd. v. Pacific Car & Foundry Co., 278 F.Supp. 839, 843 (D. Hawaii 1967), and that additional consideration is proper if plaintiff chooses the forum in which he resides. Popkin v. Eastern Air Lines, Inc., 253 F.Supp. 244, 246 (E.D.Pa.1966); Rodgers v. Northwest Airlines, Inc., 202 F.Supp. 309, 312 (S.D.N.Y.1962); Robbins Music Corp. v. Alamo Music, Inc., 119 F.Supp. 29, 31 (S.D.N.Y.1954). Balanced against this consideration is the similarity as indicated by the pleadings between the case before us and the cases now pending in the Northern District of" }, { "docid": "15567897", "title": "", "text": "If the case is transferred to the District of New Mexico, trial would be held in either Santa Fe, New Mexico, 233 miles from Clayton, or Albuquerque, New Mexico, 295 miles from Clayton. Oklahoma City, the probable place of trial in this District, is 365 miles from Clayton, New Mexico. In a proceeding for a change of venue for convenience of parties and witnesses or in interest of justice, each case turns on its own particular facts. Stiffel Co. v. Sears, Roebuck & Co., (D.C.N.C.1958) 162 F.Supp. 637. The trial court is vested with reasonable discretion in determining whether it would exercise its jurisdiction or transfer the case to another forum for trial. Chicago, Rock Island & Pacific Rd. Co. v. Hugh Breeding, Inc., (Tenth Cir. 1956) 247 F.2d 217, cert. denied 355 U.S. 880, 78 S.Ct. 138, 2 L.Ed.2d 107; Norwood v. Kirkpatrick, 349 U.S. 29, 75 S.Ct. 544, 99 L.Ed. 789 (1955). The United States Supreme Court has said 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, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). To entitle a party to a transfer of a case to another District for convenience of parties or witnesses or in the interest of justice, his reason should be fairly substantial. Nocona Leather Goods Co. v. A. G. Spalding & Bros., Inc. (D.C.Del.1958), 159 F.Supp. 269. The burden is upon the movant to establish entitlement to transfer. Faucette v. Lykes Bros. S. S. Co., D.C.N.Y.1953, 110 F.Supp. 287. Upon consideration of the circumstances of this case, the Court finds and concludes that the Motion to Transfer should be denied. The distances from the site of the accident to trial sites in New Mexico and this District are not significantly different. In either event, any witnesses in New Mexico would be required to travel considerable distances from the site of the accident if they are to testify in person. This Court will experience no difficulty in treating with any New Mexico laws which may be" }, { "docid": "23284418", "title": "", "text": "the International Monetary Exchange, or IME). According to Plaintiffs, Defendant made numerous, false representations regarding witnesses and documentary evidence already obtained or readily available — through efforts to be funded by Plaintiffs’ financial contribution — to induce Plaintiffs to join the group. When the case was called for trial before the Tax Court in Florida a month later, it became apparent that Defendant did not have the promised evidence but, rather, was woefully unprepared. Following continuance of the trial date for other reasons, Plaintiffs terminated their relationship with Defendant and demanded return of all or a majority of their funds. Defendant subsequently refused either to refund Plaintiffs’ money or to provide them with an accounting of how their money had been spent. This lawsuit ensued. I. Venue Defendant’s first assignment of error concerns the district court’s denial of his two motions seeking a change in venue pursuant to 28 U.S.C. § 1404(a). Several principles combine to make such a challenge an unlikely basis for reversal of an adverse judgment. First of all, “[i]n order to find error in the refusal to transfer [under § 1404(a)], it must appear that there was a clear abuse of discretion by the trial judge.” Metropolitan Paving Co. v. International Union of Operating Eng’rs, 439 F.2d 300, 305 (10th Cir.), cert. denied, 404 U.S. 829, 92 S.Ct. 68, 30 L.Ed.2d 58 (1971); see Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1515, 1516 (10th Cir.1991). Secondly, “party moving to transfer a case pursuant to § 1404(a) bears the burden of establishing that the existing forum is inconvenient.” Chrysler Credit Corp., 928 F.2d at 1515. Finally, “[ujnless the balance is strongly in favor of the movant the plain tiff’s choice of forum should rarely be disturbed.” William A. Smith Contracting Co. v. Travelers Indem. Co., 467 F.2d 662, 664 (10th Cir.1972); see Texas E. Transmission Corp. v. Marine Office-Appleton & Cox Corp., 579 F.2d 561, 567 (10th Cir.1978) (“Plaintiff’s choice [of forum] is also given considerable weight.”). Defendant seeks to overcome these principles collectively favoring the district court’s ruling by asserting that (1) the" }, { "docid": "9896234", "title": "", "text": "MEMORANDUM AND ORDER TROUTMAN, District Judge. To recover for personal injuries caused by an automobile accident in Wilton, Maine, in November 1976, plaintiff, a Pennsylvania resident, brought this diversity action against defendant, a non-profit corporation existing under the laws of the state of Utah. Defendant now moves, pursuant to 28 U.S.C. § 1404(a), to transfer the matter to the United States District Court for the District of Maine. Section 1404(a) provides the appropriate standard for reviewing a request for a change of venue, which may be granted “(f)or the convenience of parties and witnesses, in the interests of justice”. The “interests of justice”, which by its broad implications subsumes the other criteria, requires a court to consider accessibility to sources of proof, Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); Azriel v. Frigitemp Corp., 397 F.Supp. 871, 873 (E.D.Pa.1975); Umbriac v. American Snacks, Inc., 388 F.Supp. 265 (E.D.Pa.1975); Atlantic Richfield Co. v. Stearns-Roger, Inc., 379 F.Supp. 869, 872 (E.D.Pa.1974); Curtin v. Litton Systems, Inc., 365 F.Supp. 489, 490 (E.D.Pa.1973); Polin v. Conductron Corp., 340 F.Supp. 602, 606 (E.D.Pa.1972); Country Maid, Inc. v. Haseotes, 312 F.Supp. 1116, 1118 (E.D.Pa.1970); Fitzgerald v. Central Gulf Steamship Corp., 292 F.Supp. 847, 850 (E.D.Pa.1968); Sfiridas v. Santa Cecelia Co., S.A., 265 F.Supp. 252, 253 (E.D.Pa.1966), availability of compulsory process for attendance of unwilling witnesses, Gulf Oil Corp. v. Gilbert, supra at 508, 67 S.Ct. 839; Fitzgerald v. Texaco, Inc., 521 F.2d 448, 451 (2d Cir. 1975), cert. denied, 423 U.S. 1052, 96 S.Ct. 781, 46 L.Ed.2d 641 (1976); Chicago, Rock Island and Pacific Railroad v. Igoe, 220 F.2d 299, 303 (7th Cir.), cert. denied, 350 U.S. 822, 76 S.Ct. 49, 100 L.Ed. 735 (1955); Northwest Animal Hospital, Inc. v. Earnhardt, 452 F.Supp. 191, 194 (W.D.Okl.1977); Bussey v. Safeway Stores, Inc., 437 F.Supp. 41, 44 (E.D.Okl.1977); Berkshire International Corp. v. Marquez, 69 F.R.D. 583, 590 (E.D.Pa.1976); Curtin v. Litton Systems, Inc., supra at 490; Country Maid, Inc. v. Haseotes, supra at 1118; Fitzgerald v. Central Gulf Steamship Corp., supra at 850, the cost of obtaining attendance of willing" } ]

[ { "docid": "9672550", "title": "", "text": "DUMBAULD, Senior District Judge. On September 23, 1980, the Interstate Commerce Commission (I.C.C.), for reasons set forth in an opinion of over 130 pages, approved under 49 U.S.C. § 11343 the acquisition of control by CSX Corporation (a new corporation created to carry out the instant merger) of a giant railroad system uniting the Chessie System, Inc. (controlling six rail carriers, including the C. & 0. Railway Co., the B. & 0. R.R. Co., and Western Maryland Ry. Co.) and Seaboard Coast Line Industries, Inc. (controlling ten rail carriers, including Seaboard Coast Line R.R. Co., Louisville & Nashville R.R. Co., and Clinehfield R.R. Co.). CSX will also acquire control of Richmond, Fredericksburg & Potomac R.R. The subsidiary rail carriers will remain as separate corporate entities. In connection with its approval the Commission imposed certain conditions (commonly called the New York Dock conditions) for the protection of railroad labor; but refused to impose the set of conditions (commonly called the D.T. & I. conditions) which had in former years been routinely prescribed for protection of traffic routings for the benefit of competing carriers, but which recently have been repudiated by the Commission as interfering with the natural operation of competitive forces in a market economy. In No. 80-2649 the labor appellants attack the Commission’s failure to impose conditions more beneficial to labor than the New York Dock conditions; and in No. 82-1306 two railroads that will be competing with the CSX system for certain traffic attack the Commission’s failure to impose the D.T. & I. conditions. For reasons hereinafter elaborated we affirm. I The labor protective conditions In U.S. v. Lowden, 308 U.S. 225, 238, 60 S.Ct. 248, 255, 84 L.Ed. 208 (1939) the Supreme Court held that conditions for the protection of railroad employees affected by a consolidation of carriers could be imposed by the Commission under statutory language permitting approval of the consolidation if it “will promote the public interest.” In 1940 Congress made such protection mandatory. It was then provided that: “As a condition of its approval, .. . the Commission shall require a fair and equitable arrangement" } ]

[ { "docid": "1130298", "title": "", "text": "with statutorily imposed time limits. Petitioner Simmons, the Illinois Legislative Director for the United Transportation Union, takes issue with the Commission’s failure to consider the impact upon and impose protective conditions for employees of non-CSX railroads. He points out that 49 U.S.C. § 11344(b)(1)(B) specifically provides that the Commission shall consider “the interest of carrier employees affected by the proposed transaction.” He cites our decision in Detroit, Toledo & Ironton R. Co. v. United States, 725 F.2d 47 (6th Cir.1984), in support of his argument that we ought to apply this provision in the instant case. See id. at 50 n. 2. Section 11344(b), however, is expressly restricted to mergers involving at least two class I railroads. Detroit, Toledo & Ironton involved such a merger. The instant case does not. The instant case is subject to the provisions of section 11344(d), covering mergers other than of class I railroads. Section 11344(d) does not contain a requirement similar to section 11344(b)’s requirement to consider the impact on all carrier employees. Section 11344(d) requires only that the Commission consider the public interest. Since section 11344(b) also specifically requires consideration of the public interest, in addition to consideration of the effect on employees, we conclude that Congress did not contemplate that the general notion of “public interest” included the concern about effect on employees. Simmons argues that I.C.C. v. Railway Labor Association, 315 U.S. 373, 62 S.Ct. 717, 86 L.Ed. 904 (1942), and United States v. Lowden, 308 U.S. 225, 60 S.Ct. 248, 84 L.Ed. 208 (1939), hold that, as a matter of law, the general term “public interest,” in railroad transactions, includes the interest of railroad employees. We find that Railway Labor and Lowden are inapposite. Each case basically held that because the Commission had authority to impose conditions in furtherance of the public interest, it could impose restrictions designed to protect the employees of railroads directly involved in transactions requiring Commission approval. Neither case goes on to hold that \"public interest” necessarily includes the interest of employees not directly affected. We hold that the Commission was not required to consider the" }, { "docid": "18756223", "title": "", "text": "reduce regulatory drag, particularly with respect to marginal rail lines, the Commission was directed to expedite abandonment proceedings, with specific statutory time limits. See 49 U.S.C. § 10904; Staggers Conf.Rep. at 125, 1980 U.S.Code Cong. & Admin.News at 4157. For other discussions of the background, legislative history and purpose of the Staggers Rail Act, see Coal Exporters Ass’n of the United States v. United States, 745 F.2d 76, 80-82 (D.C.Cir.1984), cert. denied, 471 U.S. 1072, 105 S.Ct. 2151, 85 L.Ed.2d 507 (1985); Simmons v. ICC, 697 F.2d 326 (D.C.Cir.1982). . Section 10901(e) states, in its entirety: The Commission may require any rail carrier proposing both to construct and operate a new railroad line pursuant to this section to provide a fair and equitable arrangement for the protection of the interests of railroad employees who may be affected thereby no less protective of and beneficial to the interests of such employees than those established pursuant to section 11347 of this title [pertaining to mergers and consolidations]. 49 U.S.C. § 10901(e) (1982). .See also 1 I.C.C.2d at 816, (“We conclude that there has been no showing of a benefit from a notice and comment period that outweighs the benefit of expeditious handling. Doing so would be inconsistent with the intent of this class exemption — to streamline current procedures.\"). . Of course the Commission left open the possibility of employee protection, upon petition for revocation, “[i]n an extraordinary case.” 1 I.C.C.2d at 815. . The House Report expressed the legislature’s concern about the rash of bankruptcies in the industry. See Staggers House Rep. at 99, 1980 U.S.Code Cong. & Admin.News at 4043. Moreover, the expeditious consummation of transactions involving small and marginal rail lines was plainly a goal of the Act; not only did Congress set express time limits for abandonment procedures, see supra note 20, but the Senate, in particular, expressed its concern about the delays in ICC processing of \"smaller transactions,” see Staggers Conf.Rep. at 120, 1980 U.S.Code Cong. & Admin.News at 4064; see also 49 U.S.C. § 11345 (1982). Finally, Congress expressly desired to permit easier entry into the" }, { "docid": "17017334", "title": "", "text": "one of the scales.... [B]y assigning to the applicants the burden of proving the inadequacy of existing services, the Commission [improperly] favored the interests [of competing carriers] at the expense of the shippers’ ... . We see no need to provide any protection for Canadian National pending the ICC’s reconsideration. Guilford is unlikely to downgrade interchange service while the Commission is still considering the need for protective conditions. . See generally New York Dock Ry. v. United States, 609 F.2d 83, 86-90 (2d Cir.1979) (reviewing at length the development of § 11,347 and predecessor provisions). . See Missouri-Kansas-Texas Railroad v. United States, 632 F.2d at 411 n. 44 (citing ICC cases); see also CSX — Control—Chessie System, supra note 21, 363 I.C.C. at 590-91. Pennsylvania R.R. — Merger—New York Cent. R.R., 347 I.C.C. 536, 546 (1974), cited by Lamoille Valley, is not to the contrary, despite the ICC’s use of certain broad language. The Commission there construed the predecessor to § 11,347 to cover employees of wholly-owned subsidiaries of the merging railroads. It had no occasion to address the status of employees of independent railroads. . The 4R Act, supra note 5, § 402(a), 90 Stat. at 62, added the requirement that labor protective conditions be “no less protective of the interests of employees than those heretofore imposed pursuant to this [section].” Section 402(a) was a last-minute addition to the statute, and there is no legislative history dealing with it. See New York Dock Ry. v. United States, 609 F.2d 83, 93 (2d Cir.1979). This provision was rephrased to its present form without substantive change in the 1978 recodi-fication of the Interstate Commerce Act. See 49 U.S.C. note preceding § 10,101 (no substantive change intended); id. § 11,347 revision note (explaining wording changes). . But see Soo Line R.R. v. United States, 280 F.Supp. 907, 921-24 (D.Minn.1968) (3-judge court); United Transp. Union, Local Lodge No. 693-E v. Burlington N, Inc., 319 F.Supp. 451, 453-54 (D.Minn.1970) (following Soo Line). Railway Labor Executives’ Ass’n v. United States (RLEA 1st), 216 F.Supp. 101 (E.D.Va. 1963) (3-judge court), cited by Lamoille Valley, is distinguishable." }, { "docid": "114933", "title": "", "text": "section 5 of the Act.” Pennsylvania Railroad Company-Merger-New York Central Railroad, 347 I.C.C. 536, 546 (1974) (citing Louisville & J.B. & R. Co. Merger, 290 I.C.C. 725, 733; 295 I.C.C. 11; Woods Industries, Inc.-Control-United Transports, Inc., 85 M.C.C. 672, 675). As the Commission noted in Pennsylvania Railroad, “the parent, by reason of ownership, has the legal right to direct the affairs of the subsidiaries and the latter have no alternative but to accept this direction, even if such were to result * * * in complete abandonment of the subsidiaries’ operations or the extinction of their corporate existence.” Id. at 547. The Commission concluded in that case that the Act’s mandatory protective provisions covered employees of rail carrier subsidiaries. The Commission does not seem to contest the above conclusions; rather it contends that a third condition must be met before section 11347 is applicable — the employees of the railroad must also be railroad employees, that is, work for the railroad itself or a rail carrier subsidiary. Although section 11347 contains no such explicit condition, the Commission refers to the previous version of that provision, 49 U.S.C. § 5(2)(f). Section 5(2)(f) directed the Commission to “require a fair and equitable arrangement to protect the interests of the railroad employees affected.” (Emphasis added.) In Pennsylvania Railroad-Merger-New York Central Railroad, supra, 347 I.C.C. at 549, the Commission interpreted this phrase to mean that mandatory protective provisions did not extend to employees of non-rail subsidiaries. In the instant case, the Commission argues that because Congress only meant to clarify section 5(2)(f) by the rewording in section 11347 and not effect any substantive change, we should read the same restriction into the revised provision. Congress amended section 5(2)(f) by substituting “employees who are affected by the transaction” for “railroad employees affected.” We are hesitant to read into the revised provision the interpretation argued for by the Commission. If Congress meant for section 11347 to apply only to employees who worked for rail carriers and not all the employees affected by the merger, the clearest way to express this restriction would have been to leave" }, { "docid": "1130301", "title": "", "text": "to the contrary, Soo Line Railroad Co. v. United States, 280 F.Supp. 907 (D.Minn.1968), and Railway Labor Executives’ Association v. United States, 216 F.Supp. 101 (E.D.Va.1963). In Railway Labor, the court interpreted the statute to require protection of employees whom the Commission conceded would be affected even though they were not employed by the railroad involved in the transaction. The court found that although the Chesapeake & Ohio Railway Company was not actually a party to the Commission proceeding, it was “in actuality deeply and unavoidably involved,” and that, due to overlapping interests in a particular train station, many Chesapeake employees “were in reality, though not in contract, as much the employees of Seaboard [the acquiring party before the ICC] as of Chesapeake,” 216 F.Supp. at 103. The court therefore looked only at employees so intimately connected with the transaction as to be “affected” in a meaningful sense. Railway Labor, therefore, does not stand for the broad proposition Simmons urges. Only Soo Lines stands for the broad proposition that protection must be afforded to all rail employees. See 280 F.Supp. 907, 923-26. We reject the reasoning employed in Soo Lines because it fails to give any meaning to the statute’s use of the word “affected.” Had Congress intended such broad protection, it would not have limited its grant of protection to carrier employees “affected by the transaction.” We hold that section 11347 did not require the Commission to impose protective conditions for the benefit of non-CSX rail employees. Led by TV A, petitioners contend that the Commission’s environmental review of the proposed merger is inadequate under the National Environmental Protection Act, 42 U.S.C. § 4321-4347 (NEPA). NEPA requires that an agency prepare an Environmental Impact Statement (EIS) before approving any major action that will significantly affect the quality of the human environment. 42 U.S.C. § 4332(2)(C). To determine whether the effect on the environment will be significant enough to warrant an EIS, agencies prepare an environmental assessment (EA). 40 C.F.R. § 1501.4(b)-(c). An agency decision, based on an EA, that no EIS is required, can be overturned only if it" }, { "docid": "1130299", "title": "", "text": "Commission consider the public interest. Since section 11344(b) also specifically requires consideration of the public interest, in addition to consideration of the effect on employees, we conclude that Congress did not contemplate that the general notion of “public interest” included the concern about effect on employees. Simmons argues that I.C.C. v. Railway Labor Association, 315 U.S. 373, 62 S.Ct. 717, 86 L.Ed. 904 (1942), and United States v. Lowden, 308 U.S. 225, 60 S.Ct. 248, 84 L.Ed. 208 (1939), hold that, as a matter of law, the general term “public interest,” in railroad transactions, includes the interest of railroad employees. We find that Railway Labor and Lowden are inapposite. Each case basically held that because the Commission had authority to impose conditions in furtherance of the public interest, it could impose restrictions designed to protect the employees of railroads directly involved in transactions requiring Commission approval. Neither case goes on to hold that \"public interest” necessarily includes the interest of employees not directly affected. We hold that the Commission was not required to consider the interests of such employees in the instant transaction. Simmons also argues that 49 U.S.C. § 11347 requires the Commission to impose protective conditions for the benefit of non-CSX rail employees. Section 11347 provides that in transactions under sections 11344 and 11345, the Commission “shall require the carrier to provide a fair arrangement ... protective of the interest of employees who are affected by the transaction....” Simmons acknowledges that there is a “split” as to whether this provision applies to employees of carriers not directly involved in the transaction. It is not a very serious split, however. Every court of appeals that has considered the question has concluded that section 11347 does not apply to employees not directly involved in the transaction. See Southern Pacific Transportation Co. v. I.C.C., 736 F.2d 708, 725 (D.C.Cir.1984); Lamoille Valley Railroad v. I.C.C., 711 F.2d 295, 323-34 (D.C.Cir.1983); Brotherhood of Maintenance of Way Employees v. I.C.C., 698 F.2d 315, 316-18 (7th Cir.1983), cert. denied, - U.S. -, 105 S.Ct. 1172, 84 L.Ed.2d 322 (1985). Simmons cites two district court opinions" }, { "docid": "12548092", "title": "", "text": "labor in unifi-cations and no protection at all in abandon-ments. It is reasonable to suppose that if Congress had intended to make such a distinction, it would have said so more explicitly.” ICC v. RLEA, 315 U.S. at 379-80, 62 S.Ct. at 721. We hold that, when the ICC imposes conditions on a transaction under section 11344(c), it must consider, in its own discretion, whether protective conditions for affected employees are warranted. Since the ICC did not exercise its discretion in determining whether such labor protection was warranted, we remand to the ICC for proper consideration of this issue. IV We hold that UTU has standing, but that IAM lacks standing. We conclude that 49 U.S.C. § 11347 does not require the ICC to impose labor protection for employees in this case. Since 49 U.S.C. § 11344(c) gives the Commission discretionary power to impose protective conditions, however, we remand for determination of whether such protection was warranted. AFFIRMED. . \"Petitioners\" will be used to describe the collective position of RLEA, IAM and UTU. . 49 U.S.C. § 11347 (1988) provides: When a rail carrier is involved in a transaction for which approval is sought under sections 11344 and 11345 or section 11346 of this title, the Interstate Commerce Commission shall require the carrier to provide a fair arrangement at least as protective of the interest of employees who are affected by the transaction as the terms imposed under this section before February 5, 1976, and the terms established under section 405 of the Rail Passenger Service Act (45 U.S.C. 565)_ The arrangement and the order approving the transaction must require that the employees of the affected rail carrier will not be in a worse position related to their employment as - a result of the transaction during the 4 years following the effective date of the final action of the Commission.... The protective conditions,imposed under this section were set out in New York Dock Railway—Control—Brooklyn Eastern District Terminal, 360 I.C.C. 60 (1979), aff'd sub nom., New York Dock Railway v. United States, 609 F.2d 83 (2d Cir.1979). Employers must provide" }, { "docid": "114935", "title": "", "text": "the relevant language in section 5(2)(f) as it was. We need not resolve this question of interpretation because we believe, in the circumstances of this case, that the FTC employees are “railroad employees” within the meaning of the Act. Supreme Court and Commission decisions have traditionally limited a railroad’s authority to operate motor carrier companies to auxiliary-to-rail services unless special circumstances warranted expanded authority. See American Trucking Associations v. United States, 364 U.S. 1, 6, 80 S.Ct. 1570, 1574, 4 L.Ed.2d 1527 (1980); American Trucking Associations, Inc. v. I.C.C., 722 F.2d 1243, 1244-1247 (5th Cir.1984) (history of the auxiliary-to-rail restriction); Rock Island Motor Transit Co. Com. Car. Application, 63 M.C.C. 91 (1954). The Commission determined both in the Merger Order and the Reopening Order that FTC’s operations were generally restricted to service which was auxiliary to or supplemental to the Frisco rail service. FTC can thus be viewed as a part of Frisco’s and, after the merger, BN’s, single transportation system. FTC was intimately tied to the railroad’s main transportation function, in contrast to subsidiaries which are non-transportation oriented such as warehouse and mining enterprises. FTC employees should therefore be considered railroad employees. The Commission objects to this line of reasoning, pointing out that employees of merging motor carrier companies are treated differently under the Act than employees of railway companies. Section 11344(b) of the revised Act covers motor carrier mergers. It requires the Commission to “consider the interest of carrier employees affected by the transaction.” 49 U.S.C. § 11344(b) (1984). Courts have recognized that the Commission has more discretion under this section in fashioning protective conditions for affected employees than it has under section 11347. See Walters v. Roadway Express, Inc., 557 F.2d 521, 523 n. 2 (5th Cir.1977); American Buslines, Inc. v. United States, 253 F.Supp. 481, 483 (D.D.C.1966); Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America v. United States, 221 F.Supp. 958 (D.D.C.1963) (applying statutory predecessors 49 U.S.C. §§ 5(2)(c) and 5(2)(f)). The rationale for this distinction is that motor carrier employees do not need as much protection because their skills are more" }, { "docid": "23397629", "title": "", "text": "but of inefficient operation of another railroad, merely to preserve the existence of the other railroad. Hence, we do not see indemnity as a viable condition under any circumstances. 360 I.C.C. at 952-53. . The current text of § 11347 reads, in relevant part, as follows: When a rail carrier is involved in a transaction for which approval is sought under sections 11344 and 11345 or section 11346 of this title, the Interstate Commerce Commission shall require the carrier to provide a fair arrangement at least as protective of the interest of employees who are affected by the transaction as the terms imposed under this section before February 5, 1976, and the terms established under section 565 of title 45. Notwithstanding this subtitle, the arrangement may be made by the rail carrier and the authorized representative of its employees. . New York Dock Ry.-Control-Brooklyn Eastern Dist., 354 I.C.C. 399 (1978), 360 I.C.C. 60 (1979); Great Northern Pac.-Merger-Great Northern, 331 I.C.C. 228 (1967); Pennsylvania R.R.-Merger-New York Central R.R., 328 I.C.C. 304, 343-344 (1968); Texas & Pacific Ry.-Control-Kansas O. & G. Ry., 321 I.C.C. 309, 339 (1964); Seaboard Air Line R.R.-Merger-Atlantic Coast Line, 320 I.C.C. 122, 203-204 (1963), aff’d Florida East Coast Ry. v. United States, 259 F.Supp. 993, 1019 (M.D.Fla.1966), dismissed as moot sub nom. R. L. E. A. v. United States, 386 U.S. 544, 87 S.Ct. 1299, 18 L.Ed.2d 285 (1967); Chesapeake & O. Ry.-Control-Baltimore & O. R.R., 317 I.C.C. 261 (1962); Southern Ry.-Control-Central of Georgia Ry., 317 I.C.C. 557, 567-8 (1962), aff'd, R. L. E. A. v. United States, 226 F.Supp. 521 (E.D.Va.1964); Baltimore & Ohio R.R. Operation, 261 I.C.C. 615, 619-20 (1946). . Florida East Coast Ry. v. United States, 259 F.Supp. 993, 1019 (M.D.Fla.1966) (affirming Seaboard Air Line Railroad), dismissed as moot sub nom. R. L. E. A. v. United States, 386 U.S. 544, 87 S.Ct. 1299, 18 L.Ed.2d 285 (1967); R. L. E. A. v. United States, 226 F.Supp. 521, 525 (E.D.Va.1964). . Soo Line R.R. v United States, 280 F.Supp. 907 (D.Minn.1968). The RLEA also cites R. L. E. A. v. United States, 216 F.Supp." }, { "docid": "20987349", "title": "", "text": "for which approval is sought under [49 U.S.C. §§ 11344, 11345 or 11346], the Interstate Commerce Commission shall require the carrier to provide a fair arrangement at least as protective of the interests of employees who are affected by the transaction as the terms imposed under this section before February 5, 1976, and the terms established under section 405 of the Rail Passenger Service Act (45 U.S.C. 565). Notwithstanding this subtitle, the arrangement may be made by the rail carrier and the authorized representative of its employees. The arrangement and the order approving the transaction must require that the employees of the affected rail carrier will not be in a worse position related to their employment as a result of the transaction during the 4 years following the effective date of the final action of the Commission (or if an employee was employed for a lesser period of time by the carrier before the action become effective, for that lesser period). 49 U.S.C. § 11347 (Supp. III 1985). . Brotherhood of Locomotive Eng’rs v. ICC, supra note 8, 245 U.S.App.D.C. at 315, 761 F.2d at 718; Railway Labor Executives' Ass’n v. United States, supra note 8, 219 U.S.App.D.C. at 31, 675 F.2d at 1256; see also New York Dock Ry. v. United States, supra note 8, 609 F.2d at 101. . Railway Labor Executives' Ass’n v. United States, supra note 8, 219 U.S.App.D.C. at 31, 675 F.2d at 1256. In contrast, a higher grade of protection follows automatically in certain kinds of cases. When Commission approval is sought for acquisition of trackage rights in conjunction with a “consolidation or merger of ... properties or franchises,” see 49 U.S.C. § 11343(a)(1) (1982), the Commission affords the maximum employee protection by imposing the New York Dock conditions instead of the N & W conditions traditionally applied to track-age-rights awards. See note 43 supra. It is clear, however, that L & N’s planned consolidation of its own operations at South Hammond Yard with those at another facility owned jointly with another railroad is not a transaction intercepted by the statute. Section 11343(a)(1) speaks" }, { "docid": "2469982", "title": "", "text": "either. Sections 1170(e)(1), (2) were added to the Bankruptcy Code in October 1980 by Section 227(a) of the Staggers Rail Act of 1980, 94 Stat. 1931. The statute requires in pertinent part that: “(e)(1) In authorizing any abandonment of a railroad line under this section, the court shall require the rail carrier to provide a fair arrangement at least as protective of the interests of employees as that established under Section 11347 of title 49. (2) Nothing in this subsection shall be deemed to affect the priorities or timing of payment of employee protection which might have existed in the absence of this subsection. Title 49 U.S.C. § 11347 provides in pertinent part that: “When a rail carrier is involved in a transaction for which approval is sought under sections 11344 and 11345 or section 11346 of this title, the Interstate Commerce Commission shall require the carrier to provide a fair arrangement at least as protective of the interest of employees who are affected by the transaction as the terms imposed under this section before February 5, 1976, and the terms established under Section 565 of title 45.” [emphasis added.] Intervenors argue that with reference to the use of the mandatory “shall”, protective benefits must be imposed under Section 1170 and that the use of the word “shall” leaves the court with no discretion. Such a construction of the statutory scheme overlooks the term “fair” which must be determined by the courts, in light of the relevant circumstances of each case. The trustee, during the reorganization has taken considerable steps to protect the interest of Auto-Train’s employees. However, this railroad is now cashless and it would seem that imposition of protective measures, even of a non-monetary type as posited by intervenors are entirely unwarranted under the facts of this case; even assuming ar-guendo, the applicability of Section 1170(e)(1). Moreover, it should be pointed out that prior court cases which have construed the applicability of labor protection benefits under the Interstate Commerce Act, namely, In re Chicago, Rock Island & Pacific R.R., 363 I.C.C. 150, 161 (1980), appeal pending, No. 80-1788" }, { "docid": "114931", "title": "", "text": "transaction * * The history of protective provisions for employees of merging or consolidating rail carriers is recounted in New York Dock Railway v. United States, 609 F.2d 83, 86-90 (2d Cir.1979). In 1933, Congress enacted the Emergency Railroad Transportation Act which mandated a job freeze to guarantee the continued employment of employees of consolidating railroads. Because of the extreme effect this approach could have on operational efficiency, railroads and labor organizations agreed to a job security arrangement that provided bargaining and compensation protection to employees, but allowed the railroads to reduce their work force. That agreement was the Washington Job Protection Agreement of 1936 (WJPA). In 1940, Congress amended the Interstate Commerce Act to include, inter alia, a labor protective provision modeled on the WJPA, 49 U.S.C. § 5(2)(f). That section was extensively revised in 1978 and recodified at 49 U.S.C. § 11347. On its face, section 11347 applies to those who are (1) employees of one of the railroads participating in the merger, and (2) affected by the transaction. There is no doubt that the FTC employees were affected, i.e., “touched significantly,” by the BN-Frisco merger. See Railway Labor Executives’ Assoc, v. United States, 216 F.Supp. 101, 102 (E.D.Va.1963). After the merger, BN had two motor carriers operating under auxiliary-to-rail restrictions. Both companies serviced its rail business. After the deregulation of the carrier industries, BN had several options with respect to its motor carrier subsidiaries. It chose to expand the certificated authority of one of its motor carrier subsidiaries at the expense of the other. It expanded BN Transport’s authority and FTC, still burdened by its traditional rail-related restrictions, was unable to effectively compete. If FTC had not been made a subsidiary of BN as a result of the merger, BN could not have phased out FTC to make room for its other motor carrier subsidiary. Thus, FTC employees are clearly employees affected by the transaction. They were also employees of Frisco, a participant in the merger. The Commission has “long considered that a carrier and its subsidiaries constitute a single transportation system with respect to transactions under" }, { "docid": "6981840", "title": "", "text": "because it failed to address labor protection for railroad employees. Petitioners seek protection for BNSF employees. The Board responds that it is not required to provide employee protection for non-applicant employees — including the BNSF employees. When TRRC II was filed, Section 10901(e) provided that: The Commission may require any rail carrier proposing both to construct and operate a new railroad line pursuant to this section to provide a fair and equitable arrangement for the protection of the interests of railroad employees who may be affected thereby no less protective of and beneficial to the interests of such employees than those established pursuant to section 11347 of this title. 49 U.S.C. § 10901(e) (emphasis added) (1994). The plain language of the statute indicates that the Board has discretion whether to impose protections. See Ry. Labor Execs.’ Ass’n v. I.C.C., 914 F.2d 276, 278 (D.C.Cir.1990) (“Thus, for transactions under section 11343, employee protection is mandatory, while under section 10901, it is discretionary.”), cert. denied, 499 U.S. 959, 111 S.Ct. 1581, 113 L.Ed.2d 646 (1991). Moreover, the Board generally does not impose labor protections unless “exceptional circumstances are shown.” Id. The Board also has consistently interpreted Section 11347’s employee protection to apply only to the applicant railroad’s employee — in this case, TRRC employees — and not to non-applicant railroads’ employees, such as BNSF workers. See id. at 280 (“[T]he Commission’s view that section 11347 does not require labor protection for employees of nonapplicant carriers like CNW is firmly supported by previous decisions in this and other circuits.”); see also Crounse Corp. v. I.C.C., 781 F.2d 1176, 1192-93 (6th Cir.1986) (“Every court of appeals that has considered the question has concluded that section 11347 does not apply to employees not directly involved in the transaction.”), cert. denied, 479 U.S. 890, 107 S.Ct. 290, 291, 93 L.Ed.2d 264 (1986); Missouri-Kansas-Texas R.R. Co. v. U.S., 632 F.2d 392, 411-12 (5th Cir.1980), cert. denied, 451 U.S. 1017, 101 S.Ct. 3004, 3005, 69 L.Ed.2d 388 (1981). Here, Petitioners requested employee protection only for non-applicant BNSF employees. And, as previously noted, courts have consistently found that the" }, { "docid": "18573150", "title": "", "text": "786 (1980). Labor protections are mandatory for all transactions approved under 49 U.S.C. §§ 11343-11346. 49 U.S.C. § 11347; see infra section II. The ICC’s order also exempted both corporations from the requirements of 49 U.S.C. § 11301 with respect to stock issued to Mr. Whipple. This part of the order is not contested on appeal. Indeed, there is no general objection here to the propriety of the exemption procedure followed by the ICC. . The Railway Labor Executives' Association, petitioners here, was one of a number of organizations which sought to reopen the exemption proceeding. RLEA is an umbrella grouping of the chief executive officers of nineteen independent labor unions with members in the railroad and related industries. RLEA is the sole petitioner in this appeal. . In its orders, the ICC cites two unpublished ICC opinions in support of the assertion that it has \"applied consistently” 49 U.S.C. § 10901 alone \"where the proposed transactions would result in the transfer of rail lines slated for abandonment by a carrier to a non-carrier proposing to continue rail operation.” Neither opinion is on point. In both Burlington, Cedar Rapids and Northern Railway Co. — Exemption, Finance Docket No. 30462 (May 14, 1984), and Minnesota Valley Transportation Co. — Southwest — Temporary Exemption, Finance Docket No. 30431 (March 12, 1984), the acquirer sought approval of the purchase of an already abandoned line. . The ICC's practice in these matters has not been wholly consistent. See Railway Labor Executives’ Association, 735 F.2d at 703 (ICC practice is \"ambivalent\"). . \"When a rail carrier is involved in a [§ 11343 control] transaction ... the Interstate Commerce Commission shall require the carrier to provide a fair arrangement at least as protective of the interest of employees who are affected by the transaction as [the New York Dock terms].” 49 U.S.C. § 11347. The New York Dock terms are summarized in note 1 supra. . 49 U.S.C. § 11343 states in part: (a) The following transactions involving carriers providing transportation ... may be carried out only with the approval and authorization of the Commission: (3)" }, { "docid": "3381713", "title": "", "text": "conditions it had imposed for the benefit of others or, alternatively, whether the ICC should use its discretionary authority to impose additional conditions for petitioners’ benefit. The ICC again denied petitioners relief, stating that its refusal to exercise its discretionary authority was because petitioners had failed to present any evidence or arguments in favor of the ICC exercising its discretion. McPherson, (Order of April 12, 1989). I On appeal, petitioners first argue that the ICC erred in finding that they were not within the class of employees protected by the New York Dock conditions imposed for the benefit of those directly employed by the parent railroads. They contend that the ICC’s decision, based solely on the identity of the employer, ignores the intent of employee protective conditions and goes against commission and court precedent. The ICC asserts that its decision is consistent with the Supreme Court’s holding 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), and that it acted with due deference to prior commission and court cases. The statute governing labor protective conditions states, in pertinent part: “When a rail carrier is involved in a transaction for which approval is sought under sections 11344 and 11345 or section 11346 of this title, the Interstate Commerce Commission shall require the carrier to provide a fair arrangement at least as protective of the interest of employees who are affected by the transaction as the terms imposed under this section before February 5, 1976, and the terms established under section 405 of the Rail Passenger Service Act (45 U.S.C. 565).” 49 U.S.C. § 11347. In the instant case, the ICC construed § 11347’s mandatory protections as applying only to those “directly employed by a rail carrier,” and, therefore, petitioners, “who were employed by non- rail subsidiaries of the rail carrier” were excluded. McPherson (Order of April 12, 1989, at 3). When reviewing an agency’s construction of a statute it administers, a court must follow a two-step analysis. First, if Congress has directly spoken to the precise question at issue and" }, { "docid": "114948", "title": "", "text": "conditions heretofore made available to the employees of the BN and the Frisco because they are employees who were affected by the merger within the meaning of the Act; and, alternatively, because it was an abuse of discretion on the part of the Commission to deny them benefits in light of the representations made by the railroads at the time of the merger. Reversed and remanded. . 49 U.S.C. § 11347 provides in its entirety: When a rail carrier is involved in a transaction for which approval is sought under sections 11344 and 11345 or section 11346 of this title, the Interstate Commerce Commission shall require the carrier to provide a fair arrangement at least as protective of the interest of employees who are affected by the transaction as the terms imposed under this section before February 5, 1976, and the terms established under section 565 of title 45. Notwithstanding this subtitle, the arrangement may be made by the rail carrier and the authorized representative of its employees. The arrangement and the order approving the transaction must require that the employees of the affected rail carrier will not be in a worse position related to their employment as a result of the transaction during the 4 years following the effective date of the final action of the Commission (or if an employee was employed for a lesser period of time by the carrier before the action became effective, for that lesser period). Pub.L. 95-473, Oct. 17, 1978, 92 Stat. 1439. [Emphasis added.] . The provision generally does not cover employees of other railroads which might be affected by the merger. Lamoille Valley Railroad v. Interstate Commerce Commission, 711 F.2d 295, 323 (D.C.Cir.1983); Missouri-Kansas-Texas Railroad v. United States, 632 F.2d 392, 412 (5th Cir.1980). . 49 U.S.C. § 5(2)(f) provides: (f) As a condition of its approval, under this paragraph, of any transaction involving a carrier or carriers by railroad subject to the provisions of this chapter, the Commission shall require a fair and equitable arrangement to protect the interests of the railroad employees affected. In its order of approval the" }, { "docid": "114936", "title": "", "text": "which are non-transportation oriented such as warehouse and mining enterprises. FTC employees should therefore be considered railroad employees. The Commission objects to this line of reasoning, pointing out that employees of merging motor carrier companies are treated differently under the Act than employees of railway companies. Section 11344(b) of the revised Act covers motor carrier mergers. It requires the Commission to “consider the interest of carrier employees affected by the transaction.” 49 U.S.C. § 11344(b) (1984). Courts have recognized that the Commission has more discretion under this section in fashioning protective conditions for affected employees than it has under section 11347. See Walters v. Roadway Express, Inc., 557 F.2d 521, 523 n. 2 (5th Cir.1977); American Buslines, Inc. v. United States, 253 F.Supp. 481, 483 (D.D.C.1966); Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America v. United States, 221 F.Supp. 958 (D.D.C.1963) (applying statutory predecessors 49 U.S.C. §§ 5(2)(c) and 5(2)(f)). The rationale for this distinction is that motor carrier employees do not need as much protection because their skills are more transferable than those of railway employees. American Buslines, Inc. v. United States, supra, 253 F.Supp. at 483. The Commission cites these cases to support the proposition that section 11347 and its predecessor section 5(2)(f) have been consistently interpreted to exclude motor carrier employees. While we realize the Commission’s interpretation should be given great weight, e.g., Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971), we think the Commission is clearly wrong. None of the cited cases involves motor carrier subsidiaries of railroads which exclusively operate auxiliary-to-rail services. The transactions in those cases were between motor carriers and were thus clearly covered by section 11344(b). Here, however, the transaction is a merger between two railroads and the motor carrier in question is a part of one of the merging railroad’s overall transportation system. Moreover, there is no evidence in the record that the skills of FTC’s employees were transferable to general motor carrier services. Under the facts and circumstances of this case, we think section 11347 governs protective conditions for FTC employees." }, { "docid": "114930", "title": "", "text": "HEANEY, Circuit Judge. Ronald L. Cosby and more than one hundred other terminated employees of the Frisco Transportation Company (FTC), a subsidiary of the St. Louis-San Francisco Railway Company (Frisco), requests this Court to review a decision of the Interstate Commerce Commission which denied them layoff benefits in accordance with employee protective conditions contained in a 1980 order approving the merger of the Burlington Northern (BN) and Frisco. 360 I.C.C. 788 (1980), aff'd sub nom., Missouri-Kansas-Texas Railroad v. United States, 632 F.2d 392 (5th Cir.1980), cert, denied, 451 U.S. 1017, 101 S.Ct. 3004, 69 L.Ed.2d 388 (1981). We hold that the petitioners are entitled to receive benefits in accordance with the protective conditions contained in the 1980 order. We remand to the Commission for a computation of benefits. The reasons for our decision are as follows: (1) The FTC employees are entitled to protective conditions under 49 U.S.C. § 11347 (1984). That section requires the Commission “to provide a fair arrangement * * * protective of the interest of employees who are affected by the transaction * * The history of protective provisions for employees of merging or consolidating rail carriers is recounted in New York Dock Railway v. United States, 609 F.2d 83, 86-90 (2d Cir.1979). In 1933, Congress enacted the Emergency Railroad Transportation Act which mandated a job freeze to guarantee the continued employment of employees of consolidating railroads. Because of the extreme effect this approach could have on operational efficiency, railroads and labor organizations agreed to a job security arrangement that provided bargaining and compensation protection to employees, but allowed the railroads to reduce their work force. That agreement was the Washington Job Protection Agreement of 1936 (WJPA). In 1940, Congress amended the Interstate Commerce Act to include, inter alia, a labor protective provision modeled on the WJPA, 49 U.S.C. § 5(2)(f). That section was extensively revised in 1978 and recodified at 49 U.S.C. § 11347. On its face, section 11347 applies to those who are (1) employees of one of the railroads participating in the merger, and (2) affected by the transaction. There is no doubt" }, { "docid": "114932", "title": "", "text": "that the FTC employees were affected, i.e., “touched significantly,” by the BN-Frisco merger. See Railway Labor Executives’ Assoc, v. United States, 216 F.Supp. 101, 102 (E.D.Va.1963). After the merger, BN had two motor carriers operating under auxiliary-to-rail restrictions. Both companies serviced its rail business. After the deregulation of the carrier industries, BN had several options with respect to its motor carrier subsidiaries. It chose to expand the certificated authority of one of its motor carrier subsidiaries at the expense of the other. It expanded BN Transport’s authority and FTC, still burdened by its traditional rail-related restrictions, was unable to effectively compete. If FTC had not been made a subsidiary of BN as a result of the merger, BN could not have phased out FTC to make room for its other motor carrier subsidiary. Thus, FTC employees are clearly employees affected by the transaction. They were also employees of Frisco, a participant in the merger. The Commission has “long considered that a carrier and its subsidiaries constitute a single transportation system with respect to transactions under section 5 of the Act.” Pennsylvania Railroad Company-Merger-New York Central Railroad, 347 I.C.C. 536, 546 (1974) (citing Louisville & J.B. & R. Co. Merger, 290 I.C.C. 725, 733; 295 I.C.C. 11; Woods Industries, Inc.-Control-United Transports, Inc., 85 M.C.C. 672, 675). As the Commission noted in Pennsylvania Railroad, “the parent, by reason of ownership, has the legal right to direct the affairs of the subsidiaries and the latter have no alternative but to accept this direction, even if such were to result * * * in complete abandonment of the subsidiaries’ operations or the extinction of their corporate existence.” Id. at 547. The Commission concluded in that case that the Act’s mandatory protective provisions covered employees of rail carrier subsidiaries. The Commission does not seem to contest the above conclusions; rather it contends that a third condition must be met before section 11347 is applicable — the employees of the railroad must also be railroad employees, that is, work for the railroad itself or a rail carrier subsidiary. Although section 11347 contains no such explicit condition," }, { "docid": "1130300", "title": "", "text": "interests of such employees in the instant transaction. Simmons also argues that 49 U.S.C. § 11347 requires the Commission to impose protective conditions for the benefit of non-CSX rail employees. Section 11347 provides that in transactions under sections 11344 and 11345, the Commission “shall require the carrier to provide a fair arrangement ... protective of the interest of employees who are affected by the transaction....” Simmons acknowledges that there is a “split” as to whether this provision applies to employees of carriers not directly involved in the transaction. It is not a very serious split, however. Every court of appeals that has considered the question has concluded that section 11347 does not apply to employees not directly involved in the transaction. See Southern Pacific Transportation Co. v. I.C.C., 736 F.2d 708, 725 (D.C.Cir.1984); Lamoille Valley Railroad v. I.C.C., 711 F.2d 295, 323-34 (D.C.Cir.1983); Brotherhood of Maintenance of Way Employees v. I.C.C., 698 F.2d 315, 316-18 (7th Cir.1983), cert. denied, - U.S. -, 105 S.Ct. 1172, 84 L.Ed.2d 322 (1985). Simmons cites two district court opinions to the contrary, Soo Line Railroad Co. v. United States, 280 F.Supp. 907 (D.Minn.1968), and Railway Labor Executives’ Association v. United States, 216 F.Supp. 101 (E.D.Va.1963). In Railway Labor, the court interpreted the statute to require protection of employees whom the Commission conceded would be affected even though they were not employed by the railroad involved in the transaction. The court found that although the Chesapeake & Ohio Railway Company was not actually a party to the Commission proceeding, it was “in actuality deeply and unavoidably involved,” and that, due to overlapping interests in a particular train station, many Chesapeake employees “were in reality, though not in contract, as much the employees of Seaboard [the acquiring party before the ICC] as of Chesapeake,” 216 F.Supp. at 103. The court therefore looked only at employees so intimately connected with the transaction as to be “affected” in a meaningful sense. Railway Labor, therefore, does not stand for the broad proposition Simmons urges. Only Soo Lines stands for the broad proposition that protection must be afforded to all" } ]

[ { "docid": "23075048", "title": "", "text": "the factual allegations are incredible. Blackledge v. Allison, 431 U.S. 63, 76, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977); United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir.1996); Peavy v. United States, 31 F.3d 1341, 1345 (6th Cir.1994); Houston v. Lockhart, 982 F.2d 1246, 1250 (8th Cir.1993). That was the basis of the dismissal here. The complaint alleges that on numerous occasions over a span of three years unnamed guards at three different prisons unlocked the door to the plaintiffs cell while he was asleep, allowing inmates to come in and drug and sexually assault him. He slept through all these outrages and only discovered what had happened when one day he noticed a needle mark under his lip. When he visited the prison infirmary to have the mark attended to, the medical personnel claimed not to see the mark because they were trying to make him think that he was delusional. These are copycat allegations from Denton v. Hernandez, 504 U.S. 25, 27-28, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992), and are obviously and knowingly false. It was Denton, coincidentally, that held that a district court’s finding of factual frivolousness under an earlier, similarly worded statute, 28 U.S.C. § 1915(d), is to be reviewed for abuse of discretion, a deferential standard. True, the district judge hasn’t a great advantage over the appellate judges when it comes to assessing the adequacy of a complaint, but, as emphasized in Denton itself and in a number of other eases as well, see 504 U.S. at 33, 112 S.Ct. 1728; Neitzke v. Williams, 490 U.S. 319, 328, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); Bilal v. Driver, supra, 251 F.3d at 1349; Nasim v. Warden, 64 F.3d 951, 955 (4th Cir.1995); Adams v. Rice, 40 F.3d 72, 74 (4th Cir.1994) (though only Bilal and Adams involved factual frivolousness), he has some, because district judges see many more prisoner suits, with their often bizarre allegations, than appellate judges do. In addition, the determination that particular factual allegations are too crazy to trigger any sort of evidentiary proceeding (such as requiring the defendants to" } ]

[ { "docid": "22464032", "title": "", "text": "Pro Se Prisoner Complaints As we recently expounded in Hall v. Bellmon, 935 F.2d 1106, 1108-11 (10th Cir. 1991), there are three common pretrial points at which a district court may dispose of a pro se complaint such as Mr. Northing-ton’s. First, the court may dismiss the complaint as patently “frivolous or malicious” under 28 U.S.C. § 1915(d). Id. at 1108-09. See Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). A claim is “frivolous” or “malicious” if it “is based on an “indisputably meritless legal theory.” Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833. The § 1915(d) “frivolous” or “malicious” standard allows the district court to “pierce the veil of the complaint’s factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Id. “Clearly baseless factual allegations are those that are ‘fantastic’ or ‘delusional.’ ” Hall, 935 F.2d at 1109 (quoting Neitzke, 490 U.S. at 327-28, 109 S.Ct. at 1833). In making this determination, the district court is to weigh the allegations in favor of the in forma pauper-is plaintiff. Denton v. Hernandez, — U.S. -, -, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992). And we review for an abuse of discretion. Id. at-, 112 S.Ct. at 1734. Second, a district court may dismiss a pro se complaint under Rule 12(b)(6) for failure to state a claim. Under this rule, 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.' ” Id. (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). The district court must construe a pro se plaintiffs complaint liberally under this standard. Haines v. Ker-ner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972). Nevertheless, the court should not assume the role of advocate, and should dismiss claims which are supported only by vague and conclusory allegations. Hall, 935 F.2d at 1110. Third, the district court may grant summary judgment under Fed.R.Civ.P. 56(c) “if the pleadings," }, { "docid": "14371254", "title": "", "text": "at 325, 109 S.Ct. at 1831-32. Section 1915(d) “accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint’s factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Id. at 327, 109 S.Ct. at 1833. Examples of legally frivolous claims include “claims against which it is clear that the defendants are immune from suit,” and “claims of infringement of a legal interest which clearly does not exist”; examples of factually frivolous claims are “claims describing fantastic or delusional scenarios.” Id. at 327-28, 109 S.Ct. at 1833. In Denton v. Hernandez, - U.S. -, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992), the Supreme Court elaborated on the “clearly baseless” guidepost for determining factual frivolity: [A] finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible; whether or not there are judicially noticeable facts available to contradict them. An in forma pauperis complaint may not be dismissed, however, simply because the court finds the plaintiffs allegations unlikely. Some improbable allegations may properly be disposed of on summary judgment, but to dismiss them as frivolous without any factual development is to disregard the age-old insight that many allegations might be “strange, but true; for truth is always strange, Stranger than fiction.” Id. at -, 112 S.Ct. at 1733-34 (quoting Lord Byron, “Don Juan,” canto 14, stanza 101). The Supreme Court reaffirmed that a § 1915(d) dismissal is reviewed for an abuse of discretion. Id. at -, 112 S.Ct. at 1734. In determining whether a district court abused its discretion, the court of appeals may consider whether the plaintiff was proceeding pro se; whether the court inappropriately resolved genuine issues of disputed fact; whether the court applied erroneous legal conclusions; whether the court provided a statement of reasons explaining the dismissal; and whether the dismissal was with or without prejudice. Id. “[I]f it appears that frivolous factual allegations could be remedied through more specific pleading, a court of appeals reviewing a §" }, { "docid": "22762361", "title": "", "text": "failed to state a claim. Under res judicata, a final judgment bars a subsequent lawsuit relitigating matters that were litigated or could have been litigated in the earlier suit. I.A. Durbin, Inc. v. Jefferson Nat’l Bank, 793 F.2d 1541, 1549 (11th Cir. 1986). However, res judicata does not apply if there was no final judgment on the merits in the earlier suit. Id. A dismissal without prejudice is not an adjudication on the merits and thus does not have a res judicata effect. Cooter & Gell v. Hartman Corp., 496 U.S. 384, 396, 110 S.Ct. 2447, 110 L.Ed.2d,359 (1990). In this case, the district court dismissed without prejudice Hughes’s claims raised in 1998. Accordingly, the doctrine of res judicata did not bar Hughes from reasserting the same claims in 2001. The district court’s reliance to the contrary on Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992), is misplaced. Describing the appropriate standard of review for § 1915(d) dismissals, the Denton Court noted that one factor to consider is “whether the dismissal was with or without prejudice.” Id. at 34, 112 S.Ct. 1728. The Court then continued by observing that § 1915(d) dismissals are not dismissals on the merits and, therefore, do not prejudice the later filing of a paid complaint. Id. They “could, however, have a res judicata effect on frivolousness determinations for future in forma pauperis petitions.” Id. As a result, a reviewing court “should consider whether the district court abused its discretion by dismissing the complaint with prejudice or without leave to amend.” Id. Thus the Denton Court recognized no res judicata effect of § 1915 dismissals on subsequent paid complaints but, at the same time, stressed to the courts of appeal the importance of considering whether the dismissal was with or without prejudice. The logical conclusion is that only § 1915 dismissals with prejudice would have a res judicata effect on future in forma pauperis petitions; the distinction between “with” or “without” would otherwise be meaningless. The district court therefore erred in finding here that the earlier § 1915 dismissal without prejudice" }, { "docid": "19661633", "title": "", "text": "dismissed Edwards’s deliberate indifference claim on grounds of factual or legal frivolousness. A claim is factually frivolous if its allegations are bizarre, irrational or incredible. See Gladney v. Pendleton Corr. Facility, 302 F.3d 773, 774 (7th Cir.2002); cf. Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (a claim is factually frivolous under § 1915 if it is “clearly baseless”); Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992) (explaining that “a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible”). The district court’s order does not suggest the court viewed Edwards’s allegations as wholly irrational and therefore factually frivolous. Indeed, the complaint’s allegations regarding Edwards’s injury and the treatment he received are neither incredible nor bizarre. Alternatively, a claim may be properly characterized as legally frivolous if it lacks an arguable basis in law or is based on an indisputably meritless legal theory. Neitzke, 490 U.S. at 325, 327, 109 S.Ct. 1827. The district court did not suggest that Edwards’s complaint sought relief under a meritless legal theory. To the contrary, the complaint plainly seeks recovery under a recognized constitutional cause of action. So, if Edwards’s complaint is neither factually nor legally frivolous, how should we construe and review the district court’s dismissal? Although the district court held that Edwards’s deliberate indifference claim was “frivolous,” it appears from the court’s analysis that the court actually evaluated the complaint for failure to state a claim and dismissed it on this basis. We have previously recognized that “[e]n route to determining that a claim is frivolous, the district court must determine whether it is legally insufficient, an issue purely of law on which appellate review is plenary.” Billman v. Ind. Dep’t of Corr., 56 F.3d 785, 787 (7th Cir.1995). Complaints may be susceptible to dismissal for failure to state a claim for various reasons. For example, a plaintiff may allege too little in his complaint and fail to meet the minimal federal pleading requirements. See Fed.R.Civ.P. 8. Even if" }, { "docid": "22742373", "title": "", "text": "civil rights action seeking monetary and injunctive relief. The district court summarily dismissed the action under 28 U.S.C. § 1915(e)(2), 28 U.S.C. § 1915A(b), and 42 U.S.C. § 1997e(c). The district court also certified that any appeal would not be taken in good faith under 28 U.S.C. § 1915(a)(3) and that the case satisfied the provisions of 28 U.S.C. § 1915(g). McGore filed a timely appeal seeking leave to proceed in forma pauperis before this court. We held McGore’s pauper motion in abeyance pending briefing by the parties. The appellees have informed the court that they will not be filing a brief. McGore argues that the failure of the sheriffs department to serve the summons deprived him of access to the courts, that the defendants violated his due process rights, and that his complaint was subjected to standards too stringent for a pro se complaint. II. STANDARD OF REVIEW We must first determine our standard of review when a district court dismisses a complaint under § 1915(e)(2) or § 1915A(b). Prior to its amendment, 28 U.S.C. § 1915(d) provided that a court might dismiss a case if the court was satisfied that the action was frivolous or malicious. In Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 1733-34, 118 L.Ed.2d 340 (1992), the Supreme Court found that the language of the statute indicated that frivolity was a decision entrusted to the discretion of the court entertaining the pauper petition. Therefore, Supreme Court concluded that a dismissal under § 1915(d) was reviewed under the abuse of discretion standard. Id. at 33-34,112 S.Ct. at 1733-34. In contrast, § 1915(e)(2) and § 1915A(b) do not contain discretionary language. Section 1915(e)(2) requires that a court “shall dismiss” a case if: the allegation of poverty is untrue; the case is frivolous or malicious; the case fails to state a claim on which relief may be granted; or a party seeks monetary relief against a defendant who is immune from such relief. Section 1915A(b) is essentially identical to § 1915(e)(2) except that § 1915A applies only to prisoners and does not contain the provision" }, { "docid": "17632537", "title": "", "text": "POSNER, Chief Judge. Jason Billman, an inmate of an Indiana state prison, attempted to bring suit under 42 U.S.C. § 1983 against the prison system, prison officials, and guards, seeking damages for the infliction upon him of cruel and unusual punishment in violation of the Eighth Amendment, the principles of which have been held to bind the states by virtue of the due process clause of the Fourteenth Amendment. He asked for leave to file his complaint in forma pauperis. The district court denied leave, and dismissed the suit with prejudice, on the ground that the suit was frivolous. 28 U.S.C. § 1915(d). This ruling was, at the very least, a technical error. As the Supreme Court pointed out in Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992), all that section 1915(d) authorizes the district court to do if it determines that the suit is frivolous is to deny leave to proceed in forma pauperis. The plaintiff can then try to scrape together the funds - required for filing a paid suit, and if he succeeds, and refiles the suit, the question of dismissal on the pleadings will be evaluated under Rule 12 of the Federal Rules of Civil Procedure. The judge’s error was substantial and not merely technical if the suit was not frivolous; and although the Supreme Court has ruled that the standard of appellate review of a determination of frivolousness under 28 U.S.C. § 1915(d) is the deferential “abuse of discretion” standard, Denton v. Hernandez, supra, 504 U.S. at 34, 112 S.Ct. at 1734, this cannot be understood entirely literally. En route to determining that a claim is frivolous, the district court must determine whether it is legally insufficient, an issue purely of law on which appellate review is plenary. See, e.g., Johnson v. Rodriguez, 943 F.2d 104, 107 (1st Cir.1991); cf. Pullman-Standard v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982). Where discretion in a meaningful sense enters is where— and this is also involved in this case — the district court, having decided that the" }, { "docid": "22184573", "title": "", "text": "the administrative remedy procedures Harper pursued demonstrates deliberate indifference, contributing to the constitutional violations. II. Harper sued a number of Mississippi Department of Corrections officials and employees, alleging that they had subjected him to cruel and unusual punishment and that the classification system they employed denied him due process and equal protection of the laws. He seeks a declaratory judgment, recognizing the constitutional violations, and injunctive relief, enjoining further harassment. He also seeks compensatory damages for his emotional distress and mental anguish. The magistrate judge conducted a hearing pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir.1985), during which Harper primarily complained about the manner in which his classification status is determined. The magistrate judge determined that Harper failed to a state a claim that implicated any constitutional protections. Characterizing the claims as no more than Harper’s disagreement with his classification as an “extreme security risk,” a reasonable classification in light of Harper’s successful and attempted escapes and repeated possession of unauthorized items, the magistrate judge recommended that the complaint be dismissed as frivolous because it lacked an arguable basis in law. He did not specifically address the Eighth Amendment claim. The distinct court adopted the report and recommendation and dismissed the complaint as frivolous. III. A district court may dismiss as frivolous the complaint of a prisoner proceeding in forma pauperis if it lacks an arguable basis in law or fact. See Denton v. Hernandez, 504 U.S. 25, 31-32, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992); McDonald v. Johnson, 139 F.3d 1056, 1060 (5th Cir.1998); see also 28 U.S.C. § 1915(e)(2)(B)® (allowing dismissal of in forma paupens action if frivolous). “A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges the violation of a legal interest which clearly does not exist.” Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir.1998) (quoting McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir.1997)). We review the dismissal of a frivolous complaint for abuse of discretion. See Denton, 504 U.S. at 33-34, 112 S.Ct. 1728; Davis, 157 F.3d" }, { "docid": "21504552", "title": "", "text": "in fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). The judge did not say whether the fatal flaw was factual or legal, so we consider each possibility. We review a dismissal for factual frivolousness for an abuse of discretion. Gladney v. Pendleton Corr. Facility, 302 F.3d 773, 775 (7th Cir. 2002). Allegations are not frivolous unless they are “clearly baseless,” “fanciful,” “fantastic,” “delusional,” “irrational,” or “wholly incredible.” Denton v. Hernandez, 504 U.S. 25, 32-33, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992). Felton’s allegations— that when he fled officers along an expressway, they chased him, rammed' his car, and used stun guns on him — were not frivolous. See id. at 33, 112 S.Ct. 1728 (allegations that are merely “unlikely,” “improbable,” or “strange” do not meet the frivolousness standard). If the judge dismissed the suit as factually frivolous, he abused his discretion. A claim is legally frivolous if it is “based on an indisputably meritless legal theory.” Neitzke, 490 U.S. at 327-28, 109 S.Ct. 1827. Our review is plenary. Billman v. Ind. Dep’t of Corrs., 56 F.3d 785, 787 (7th Cir. 1995). Felton’s theory is familiar: he says officers used excessive force in arresting him, which violates the Fourth Amendment (applicable to the states through the Fourteenth). As an initial matter, Felton’s suit would lack “even an arguable basis in law” if his injuries were self-inflicted and the officers caused him no harm. That may be what the district judge concluded after reading the newspapers. But when screening for frivolousness, “the complaint is the entire record of the case.” Billman, 56 F.3d at 788. The “frivolousness determination, frequently made sua sponte before the defendant has even been asked to file an answer, cannot serve as a factfinding process for the resolution of disputed facts.” Denton, 504 U.S. at 32, 112 S.Ct. 1728; see also Williams v. Wahner, 731 F.3d 731, 733 (7th Cir. 2013). Felton says the judge relied on the newspapers to dismiss his suit. And though the City did not file a brief, it sent a letter to the court, agreeing with" }, { "docid": "21504551", "title": "", "text": "his narrative to be a high-speed chase.” So the judge consulted three newspaper accounts of Felton’s arrest. “Instead of expending further resources in recapping what those newspaper accounts reflected,” the judge merely attached them as exhibits to his order. Then, without explanation, the judge declared that Felton was trying “like the alchemists of the Middle Ages, to transmute base metal into gold.” So the judge dismissed the entire suit as “frivolous.” See 28 U.S.C. § 1915A(b)(l). Felton appealed and we appointed him an attorney. Though the City did not participate in the proceedings below, we invited it to file an appellate brief. It declined, so we appointed an amicus curiae to defend the judgment. II. ANALYSIS District judges must screen prisoner complaints as soon as practicable and must “dismiss the complaint, or any portion of the complaint, if the complaint is frivolous, malicious, or fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915A(b)(l). Felton’s complaint was dismissed as “frivolous,” which means “lacking] an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). The judge did not say whether the fatal flaw was factual or legal, so we consider each possibility. We review a dismissal for factual frivolousness for an abuse of discretion. Gladney v. Pendleton Corr. Facility, 302 F.3d 773, 775 (7th Cir. 2002). Allegations are not frivolous unless they are “clearly baseless,” “fanciful,” “fantastic,” “delusional,” “irrational,” or “wholly incredible.” Denton v. Hernandez, 504 U.S. 25, 32-33, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992). Felton’s allegations— that when he fled officers along an expressway, they chased him, rammed' his car, and used stun guns on him — were not frivolous. See id. at 33, 112 S.Ct. 1728 (allegations that are merely “unlikely,” “improbable,” or “strange” do not meet the frivolousness standard). If the judge dismissed the suit as factually frivolous, he abused his discretion. A claim is legally frivolous if it is “based on an indisputably meritless legal theory.” Neitzke, 490 U.S. at 327-28, 109 S.Ct. 1827. Our review is plenary." }, { "docid": "22184574", "title": "", "text": "because it lacked an arguable basis in law. He did not specifically address the Eighth Amendment claim. The distinct court adopted the report and recommendation and dismissed the complaint as frivolous. III. A district court may dismiss as frivolous the complaint of a prisoner proceeding in forma pauperis if it lacks an arguable basis in law or fact. See Denton v. Hernandez, 504 U.S. 25, 31-32, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992); McDonald v. Johnson, 139 F.3d 1056, 1060 (5th Cir.1998); see also 28 U.S.C. § 1915(e)(2)(B)® (allowing dismissal of in forma paupens action if frivolous). “A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges the violation of a legal interest which clearly does not exist.” Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir.1998) (quoting McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir.1997)). We review the dismissal of a frivolous complaint for abuse of discretion. See Denton, 504 U.S. at 33-34, 112 S.Ct. 1728; Davis, 157 F.3d at 1005. A. The court did not abuse its discretion in dismissing Harper’s claim as it relates to his classification. “Inmates have no protectable property or liberty interest in custodial classifications.” Whitley v. Hunt, 158 F.3d 882, 889 (5th Cir.1998). Indeed, “absent exigent circumstances, administrative segregation as such, being an incident to the ordinary life of a prisoner, will never be a ground for a constitutional claim because it simply does not constitute a deprivation of a constitutionally cognizable liberty interest.” Martin v. Scott, 156 F.3d 578, 580 (5th Cir.1998) (quotation omitted). Because Harper relies on a legally nonexistent interest, any alleged due process or other constitutional violation arising from his • classification is indisputably meritless. B. The district court did not address the Eighth Amendment claim; rather, it simply dismissed the complaint, including that claim, as frivolous. We can affirm on any basis supported by the record. See Davis, 157 F.3d at 1005. We affirm the dismissal of Harper’s complaint as frivolous insofar as he seeks damages for his emotional suffering that resulted from" }, { "docid": "23301055", "title": "", "text": "STEPHEN H. ANDERSON, Circuit Judge. Plaintiff Carrol Richard Olson appeals the district court’s dismissal of his 42 U.S.C. § 1983 complaint and denial of his motion for leave to proceed in forma pauperis. The district court dismissed the complaint as frivolous under 28 U.S.C. § 1915(d). We exercise jurisdiction under 28 U.S.C. § 1291 and affirm. Plaintiff, a state prisoner, filed this action pro se and in forma pauperis. His complaint alleges a denial of adequate medical care, adequate exercise, and kosher meals. Before defendants had been served with the complaint, the district court ordered prison officials to investigate plaintiffs allegations and file a Martinez report, so that the court could evaluate whether there was a factual or legal basis to the claims. See Martinez v. Aaron, 570 F.2d 317, 319-20 (10th Cir.1978). Plaintiff was permitted to file a response to the Martinez report. As plaintiff is representing himself, his complaint will be construed liberally. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972). Section 1915(d) allows the district court to dismiss an in forma pauperis suit if it is frivolous. A claim is frivolous if the factual contentions supporting the claim are “ ‘clearly baseless,’ ” Denton v. Hernandez, — U.S. —,—, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992) (quotation omitted), or the claim is based on a legal theory that is “indisputably meritless,” Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 1833, 104 L.Ed.2d 338 (1989). “A court may consider the Martinez report in making its clearly baseless determination, but ‘it cannot resolve material disputed factual findings when they are in conflict with the pleadings or affidavits.’ ” Shabazz v. Askins, 980 F.2d 1333, 1334 (10th Cir.1992) (quoting Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.1991)). We review the district court’s dismissal under § 1915(d) for an abuse of discretion. Denton, — U.S. at -, 112 S.Ct. at 1734. Plaintiffs claim of deliberate indifference to his medical needs is based on allegations that he was scheduled for his second heart surgery on September 14, 1992, for his life" }, { "docid": "22054903", "title": "", "text": "encounter.” Plaintiff also claims that Driver refused to remove the bomb belt even when Plaintiff was alone in a holding cell or when he needed to use the restroom. I. We must first determine the proper standard of review. The district court order dismissed Plaintiffs claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), which requires the district court to “dismiss the case at any time if the court determines that the action ... is frivolous.” Before the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(d) allowed the district court to dismiss a complaint “if satisfied that the action is frivolous or malicious.” Dismissal under section 1915d was reviewed for abuse of discretion. Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 1734, 118 L.Ed.2d 340 (1992). The PLRA made three pertinent changes to section 1915. First, dismissal is now mandatory. Second, the word “satisfied” has been replaced with “determined.” Third, the complaint now may also be dismissed under section 1915 for failure to state a claim. 28 U.S.C. § 1915(e)(2)(B)(ii). We have already held that dismissal for failure to state a claim under section 1915(e)(2)(B)(ii) is reviewed de novo. Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir.1997). But we do not understand these statutory changes to alter the abuse of discretion standard of review for cases dismissed as frivolous under section 1915(e). The Supreme Court explained the difference between a Rule 12(b)(6) dismissal and the pre-PLRA section 1915: section 1915, unlike Rule 12(b)(6), “accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint’s factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 1833, 104 L.Ed.2d 338 (1989). This unique dismissal authority of the district court, although now mandatory, has not changed. As the Court explained, frivolous claims include claims “describing fantastic or delusional scenarios, claims with which federal district judges are all too familiar.” Id. And because district judges remain more familiar with and are more experienced to" }, { "docid": "19661632", "title": "", "text": "federal court pursuant to 42 U.S.C. § 1983 asserting claims for deliberate indifference in violation of the Eighth Amendment and state-law medical negligence. The district court dismissed the Eighth Amendment claim on preliminary screening and declined to exercise supplemental jurisdiction over the state-law negligence claim. II. Discussion The district court conducted an initial review of Edwards’s § 1983 complaint under 28 U.S.C. § 1915A, which requires district courts to preliminarily screen prisoner complaints and dismiss them if they are frivolous, malicious or fail to state a claim on which relief may be granted. 28 U.S.C. § 1915A(b)(l). The district court dismissed Edwards’s Eighth Amendment claim as frivolous because he “received substantial, prompt medical treatment for his injured finger.” The court explained that “[njone of the facts alleged provides even a viable basis for finding that any Defendant was deliberately indifferent to [Edwards’s] medical needs, in violation of his constitutional rights.” Having dismissed the federal constitutional claim, the court declined to exercise supplemental jurisdiction over the state-law claim. It is not clear whether the district court dismissed Edwards’s deliberate indifference claim on grounds of factual or legal frivolousness. A claim is factually frivolous if its allegations are bizarre, irrational or incredible. See Gladney v. Pendleton Corr. Facility, 302 F.3d 773, 774 (7th Cir.2002); cf. Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (a claim is factually frivolous under § 1915 if it is “clearly baseless”); Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992) (explaining that “a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible”). The district court’s order does not suggest the court viewed Edwards’s allegations as wholly irrational and therefore factually frivolous. Indeed, the complaint’s allegations regarding Edwards’s injury and the treatment he received are neither incredible nor bizarre. Alternatively, a claim may be properly characterized as legally frivolous if it lacks an arguable basis in law or is based on an indisputably meritless legal theory. Neitzke, 490 U.S. at 325, 327, 109 S.Ct. 1827." }, { "docid": "22235296", "title": "", "text": "anguish damages, and “any other relief this Court deems proper and adequate[ ] in the foregoing matter.” The ease was referred to a magistrate judge. On January 12, 1993, the magistrate judge held a Spears hearing to determine whether a non-frivolous basis for Boyd’s § 1983 action existed. At the Spears hearing, Boyd stated that by filing this suit he was seeking to attack the constitutionality of his state court conviction. In a written report filed on January 21, 1993, the magistrate judge recommended that Boyd’s claim be dismissed with prejudice. The magistrate judge concluded that Judge Biggers and Prosecutor Young were absolutely immune from suit under § 1983 for the conduct alleged by Boyd, that Boyd’s defense attorney was not a state actor for § 1983 purposes, and that Boyd’s allegations against Sheriff Coleman and Investigator Brinkley were merely conelusory and failed to state a claim under § 1983. The magistrate judge also advised Boyd to exhaust his state remedies if he wished to pursue a claim of ineffective assistance against his defense counsel. On June 18,1993, the district court adopted the magistrate judge’s report and recommendation in its entirety and entered final judgment dismissing Boyd’s complaint with prejudice. II. STANDARD OF REVIEW Although the district court did not expressly state that Boyd’s claims were “frivolous” under 28 U.S.C. § 1915(d), we treat the court’s determination as a § 1915(d) dismissal because the court dismissed his complaint with prejudice prior to service. Spears v. McCotter, 766 F.2d 179, 181 (5th Cir.1985). Dismissal of an in forma pauperis complaint is appropriate if the district court determines that it is frivolous, i.e., that “it lacks an arguable basis in either law or fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989). A complaint is legally frivolous if it is premised on an “indisputably meritless legal theo ry.” Id. at 327, 109 S.Ct. at 1833. We review a district court’s § 1915(d) dismissal using an abuse of discretion standard. Denton v. Hernandez, — U.S. -, -, 112 S.Ct. 1728, 1734, 118 L.Ed.2d 340 (1992). III." }, { "docid": "14371253", "title": "", "text": "rehabilitative programs; and (5) the inadequate preparation of food. Named as defendants were the Commissioner of the Indiana Department of Corrections (“In Official Capacity”), the Superintendent of the Indiana State Reformatory, and two Reformatory employees. The district court sua sponte dismissed the complaint with prejudice prior to service of process, finding it to be frivolous within the meaning of 28 U.S.C. § 1915(d). The court denied the requests to proceed informa pauperis and for class certification. Only Alston appealed the dismissal of the complaint, raising the first three claims set forth above. II. DISCUSSION The in forma pauperis statute, 28 U.S.C. § 1915(d), authorizes federal courts to dismiss a claim filed in forma pauperis “ ‘if the allegation of poverty is untrue, or if satisfied that the action is'frivolous or malicious.’” Neitzke v. Williams, 490 U.S. 319, 324, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989) (quoting 28 U.S.C. § 1915(d)). In Neitzke, the Supreme Court held that a complaint is frivolous “where it lacks an arguable basis either in law or in fact.” Id. at 325, 109 S.Ct. at 1831-32. Section 1915(d) “accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint’s factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Id. at 327, 109 S.Ct. at 1833. Examples of legally frivolous claims include “claims against which it is clear that the defendants are immune from suit,” and “claims of infringement of a legal interest which clearly does not exist”; examples of factually frivolous claims are “claims describing fantastic or delusional scenarios.” Id. at 327-28, 109 S.Ct. at 1833. In Denton v. Hernandez, - U.S. -, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992), the Supreme Court elaborated on the “clearly baseless” guidepost for determining factual frivolity: [A] finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible; whether or not there are judicially noticeable facts available to contradict them. An in forma pauperis complaint may not" }, { "docid": "23018398", "title": "", "text": "OPINION OF THE COURT BECKER, Circuit Judge. This is an appeal by plaintiff, Donald Urru-tia, from an order of the district court dismissing his civil rights complaint, 42 U.S.C. § 1983, as legally frivolous pursuant to 28 U.S.C. § 1915(d), and denying him the opportunity to amend his complaint to correct the defects. The § 1915(d) determination can be prolonged because the matter often goes first to a magistrate judge, who reviews the pleadings and makes a recommendation to the district judge. The principal question presented by the appeal is whether the 120 day period of Fed.R.Civ.P. 15(c)(3) for satisfying the requirements for relation back of an amendment that changes or adds a party is suspended while the district court considers the § 1915(d) question so that the amendment will not be barred by a statute of limitations that expires after the complaint is filed. The version of section 1915(a) of Title 28 in effect during the time when Urrutia’s complaint was under consideration in the district court provided for the filing of a complaint without prepayment of fees by a person who was unable to afford the fees. Section 1915(d), however, permits the district court to consider whether an in forma pauperis complaint is frivolous or malicious before authorizing issuance of the summons and service of the complaint. Some frivolous complaints can be remedied by an amendment pursuant to Fed.R.Civ.P. 15. Where that is so, a district court may not dismiss the complaint as frivolous and must permit the amendment. Denton v. Hernandez, 504 U.S. 25, 34, 112 S.Ct. 1728, 1734, 118 L.Ed.2d 340 (1992). An amendment to a complaint must satisfy the statute of limitations, however. If the limitations period has expired, in order to survive, the amendment must relate back to the original complaint under Rule 15(c). Urrutia alleged in his original complaint that the police, after handcuffing him, stood by and watched while another individual stabbed him. The original filing, which occurred after the magistrate judge ruled that Urrutia could not afford to pay the filing fees under § 1915(a), was within the statute of limitations." }, { "docid": "23301056", "title": "", "text": "court to dismiss an in forma pauperis suit if it is frivolous. A claim is frivolous if the factual contentions supporting the claim are “ ‘clearly baseless,’ ” Denton v. Hernandez, — U.S. —,—, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992) (quotation omitted), or the claim is based on a legal theory that is “indisputably meritless,” Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 1833, 104 L.Ed.2d 338 (1989). “A court may consider the Martinez report in making its clearly baseless determination, but ‘it cannot resolve material disputed factual findings when they are in conflict with the pleadings or affidavits.’ ” Shabazz v. Askins, 980 F.2d 1333, 1334 (10th Cir.1992) (quoting Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.1991)). We review the district court’s dismissal under § 1915(d) for an abuse of discretion. Denton, — U.S. at -, 112 S.Ct. at 1734. Plaintiffs claim of deliberate indifference to his medical needs is based on allegations that he was scheduled for his second heart surgery on September 14, 1992, for his life threatening heart condition, but defendants refused to deliver him for the surgery. Plaintiff had not received the surgery when he filed his complaint on September 21,1992. He requests a court order directing defendants to provide the necessary medical treatment, as well as damages for pain and suffering from defendants’ alleged deliberate indifference to his medical needs. According to the Martinez report, plaintiff entered the hospital for his second procedure on September 25, 1992 (eleven days after he alleges it was originally scheduled). Plaintiff admits in his response to the Martinez report that he did receive the catheterization and angioplasty, but he enlarges his claim to cover the prison’s failure to provide him with a heart specialist and these procedures when he was first incarcerated, thereby making him suffer for eighteen months. The district court found that “[t]his sequence of events does not present a factual basis for a claim of deliberate indifference.” R. 8 at 2. We agree. Reading his original complaint and his response to the Martinez report liberally, we have thoroughly reviewed the" }, { "docid": "18867252", "title": "", "text": "the Superintendent’s residence. Finally, in his verified complaint, White claimed that he told House that he was entitled to three meals a day, and that House responded by laughing and saying that “he didn’t care what the courts said on feeding three meals a day to inmates.” (J.A. at 16A.) The matter was referred to a magistrate judge who recommended dismissal under § 1915(d) on two grounds. First, the magistrate judge determined that Defendants were acting in their official capacities, and held that they were therefore immune from suit under § 1983. Second, the magistrate judge determined that White’s allegation that “he was denied three meals a day is refuted by affidavits attached to defendants’ motion to dismiss.” (J.A. at 58A.) The magistrate judge also determined that White’s claim for injunctive relief was moot because he was no longer incarcerated at Pruntytown. See Magee v. Waters, 810 F.2d 451, 452 (4th Cir.1987). The district court accepted the recommendation of the magistrate judge and dismissed the complaint. II A Section 1915(d) grants district courts the power to dismiss informa pauperis complaints that are either frivolous or malicious. The Supreme Court has determined that a complaint is frivolous under § 1915(d) “where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989). A complaint lacks an arguable basis in law where it is based on an “indisputably meritless legal theory.” Id. at 327, 109 S.Ct. at 1833. A complaint lacks an arguable basis in fact where “the facts alleged rise to the level of the irrational or the wholly incredible.” Denton v. Hernandez, - U.S. -, -, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992). Dismissals under § 1915(d) are reviewed for abuse of discretion. Id. at -, 112 S.Ct. at 1734. District courts typically will grant a plaintiff leave to proceed in forma pauperis only after making a preliminary finding that the complaint is not frivolous. Since leave to proceed in forma pau-peris is necessary for service under § 1915(b), most dismissals under § 1915(d)" }, { "docid": "22039337", "title": "", "text": "because Brown’s complaint was-subject to dismissal under the PLRA, 28 U.S.C. section 1915. No responsive pleading had been filed. On August 4, 2003, the district court adopted the report and recommendation of the magistrate judge and dismissed Brown’s complaint without prejudice. Brown filed this appeal, and the district court granted Brown permission to proceed informa pauperis. II. STANDARD OF REVIEW This Court reviews the denial of a motion to amend a complaint for abuse of discretion. Steger v. Gen. Elec. Co., 318 F.3d 1066, 1080 (11th Cir.2003). We review the interpretation of the filing fee provision of the PLRA de novo. Dupree v. Palmer, 284 F.3d 1234, 1235 (11th Cir. 2002). The sua sponte dismissal of an action for failure to state a claim is also reviewed de novo, and we must view the allegations in the complaint as true. Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th Cir.2003) (citing Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir.1997)). III. DISCUSSION The- resolution of this appeal hinges on Brown’s status as a prisoner, who has filed three or more frivolous lawsuits and seeks to proceed in forma pauperis; his status triggers three separate provisions of the PLRA. The first provision, 28 U.S.C. section 1915(g), bars a prisoner from proceeding in forma pauperis after he has filed three meritless lawsuits, unless he is in imminent danger of serious physical injury: [i]n no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g). The second provision, 28 U.S.C. section 1915(e)(2)(B)(ii), directs the district court to dismiss the complaint of any plaintiff proceeding in forma pauperis if the court determines that the complaint “fails to" }, { "docid": "15203414", "title": "", "text": "After the first letter was opened, Castillo filed a grievance with prison officials. The mail supervisor at Cook County responded that “Legal mail is sometimes opened when overall mail is heavy — we then use letter opener machine by Pitney-Bowes — once in a great while we miss taking out all legal mail — This has been called to my attention. We will take more care — And hope that this error will not reoccur.” (R. 1-10.) Over the course of the next eight months, two more similarly marked letters were opened. After the third letter was opened, Castillo again filed a grievance and then filed his complaint with the district court, seéking to file in forma pauperis. The district court denied Castillo leave to file in forma pauperis and dismissed the complaint with prejudice pursuant to 28 U.S.C. § 1915(d), which allows frivolous cases to be dismissed. In this appeal, Castillo challenges the denial of leave to file in forma pauperis and the dismissal. We reverse and remand with instructions that counsel be appointed for Castillo. II. When responding to an application to proceed in forma pauperis, a district court “may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” 28 U.S.C. § 1915(d). The district court’s dismissal in the instant case was based on its finding that Castillo’s complaint had “no arguable legal basis.” (R. 6-4.) As the meager record in this case contains no hint that Castillo’s allegation of poverty is untrue or that this action was undertaken with malice, we must examine the district court’s dismissal to determine whether it was an abuse of discretion. Denton v. Hernandez, — U.S.-, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992). “[A] complaint, containing as it does both factual allegations and legal conclusions, is frivolous where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989). We begin by examining whether Castillo has a nonfrivolous legal basis for his complaint. To meet the" } ]

[ { "docid": "23250235", "title": "", "text": "use false statements in aircraft engine logbooks during the calendar years 2000 through 2002. The charged conspiracy covered the sale of unsafe airplane engines with accompanying false documentation, listing six overt acts, “among others” (R., Vol. 1 at 41 (indictment ¶ 9)), all in violation of 18 U.S.C. § 38(a)(3). Parker challenges three engines sold during the conspiracy time-frame to Messrs. Kardell and Brown, and the Flemings, but not listed in the overt acts section. The government argues the transactions are intrinsic to the charged crimes and thus not subject to the Rule 404(b) limitation. We agree. Rule 404(b) limits evidence of ‘other’ crimes, wrongs, or acts — not the crime in question. Similarly, “[i]t is well settled that Rule 404(b) does not apply to other act evidence that is intrinsic to the crime charged.” United States v. O’Brien, 131 F.3d 1428, 1432 (10th Cir. 1997); see also United States v. Arney, 248 F.3d 984, 992 (10th Cir.2001) (discussing Rule 404(b) as not applying to intrinsic evidence). Generally speaking, “[ijntrinsic evidence is directly connected to the factual circumstances of the crime and provides contextual or background information to the jury. Extrinsic evidence, on the other hand, is extraneous and is not intimately connected or blended with the factual circumstances of the charged offense.” Thomas M. DiBiagio, Intrinsic and Extrinsic Evidence in Federal Criminal Trials: Is the Admission of Collateral Other-Crimes Evidence Disconnected to the Fundamental Right to a Fair Trial, 47 Syracuse L.Rev. 1229, 1231 (1997). Because Rule 404(b) only limits evidence of ‘other’ crimes — those extrinsic to the charged crime — evidence of acts or events that are part of the crime itself, or evidence essential to the context of the crime, does not fall under the other crimes limitations of Rule 404(b). The three transactions within the charged conspiracy time-frame are intrinsic to the crime and substantiate the criminal conspiracy. They directly support the conspiracy charged, namely that Parker made or used false statements in connection with airplane parts and logbooks associated with the sales to Mr. Kardell, Mr. Brown, and the Flemings. These three sales provided" } ]

[ { "docid": "5372533", "title": "", "text": "point eonvincingly towards the defendant’s intent. See United States v. Bass, 411 F.3d 1198 (10th Cir.2005); United States v. Tucker, 305 F.3d 1193, 1204 (10th Cir.2002). In Bass, the court relied on the fact that the defendant used software “specifically aimed at eliminating the digital residue of his illicit activities,” Dobbs, 629 F.3d at 1205, to determine that the defendant did knowingly receive the files stored in his internet cache. See Bass, 411 F.3d at 1202. Similarly, the Tenth Circuit affirmed a conviction for possession where the defendant argued that he never intentionally saved the files in his cache to his hard drive. See Tucker, 305 F.3d at 1204. There, the court focused on the defendant’s admission that he knew the images on the web page would be sent to his browser cache file. Id. Thus, the court held, because the defendant “knew his browser cached the image files, each time he intentionally sought out and viewed the child pornography with his web browser he knowingly acquired and possessed the images.” Id. at 1205. Other circuits have agreed that while “the specter of spam, viruses, and hackers must not prevent the conviction of the truly guilty ... prosecutors, judges and juries have a duty to safeguard — as best as they are able — potential defendants when receipt of child pornography might well have been truly inadvertent.” United States v. Pruitt, No. 10-10829, 638 F.3d 763, 767, 2011 WL 1380687, at *3 (11th Cir. Apr. 13, 2011) (not yet published). In Pruitt, the Eleventh Circuit affirmed a knowing receipt conviction for files held in a cache where the evidence showed that the defendant sought out and viewed child pornography, searched for child pornography on the internet, and had downloaded child pornography on an entirely different computer at the same time. See Pruitt, 638 F.3d at 767, 2011 WL 1380687, at *3. In another child pornography possession case, the Ninth Circuit was .faced with the question of whether thousands of images of child pornography stored in a temporary folder could be counted for the calculation of a defendant’s sentencing guidelines range," }, { "docid": "23184508", "title": "", "text": "admitted in evidence sixteen of the images after concluding they were relevant evidence of Brand’s intent and therefore admissible under Rule 404(b). Id. at 187. On appeal, Brand argued that the district court’s admission of the images was erroneous and highly prejudicial. Id. at 195. The government countered that the evidence was probative of Brand’s intent, which was, as in the case before us, the “primary issue in dispute.” Id. at 196. In holding that the district court did not abuse its discretion, the court noted that “in making its evidentiary rulings, the district court concluded” — as did the court here — that Brand “put his intent to commit the charged crimes at issue.” Id. The court held, The images Brand possessed on his computer were relevant to determining whether, in traveling across state lines to meet “Julie” and in attempting to entice [her], Brand intended to engage in illicit sexual activity.... [TJhese images provided a glimpse into Brand’s sexual interest in children and, as such, were highly probative of whether he wanted to have sex with “Julie” .... [T]he fact that Brand had images of child pornography on his computer made it “more probable ... than it would be without the evidence,” Fed. R.Evid. 401, that Brand’s intent was to travel [interstate] to engage in illicit sexual activity and to attempt to entice a minor to engage in sexual activity .... ... A reasonable juror could conclude that Brand was whetting his own sexual appetite for his encounter with “Julie.” A causal link between possession of child pornography and the commission of sexual crimes need not be proven conclusively for the evidence in question to be admissible.... [T]here is enough similarity or connection between the two so as to make the pictures on Brand’s computer relevant to his intent.... ... [T]he district court did not abuse its discretion in holding that evidence that Brand possessed child pornography was admissible under Rule 404(b) to show whether Brand’s intent ... involved an intent to engage in sexual activity with a minor.... Id. at 197-99. In reaching its holding, the Second" }, { "docid": "23440439", "title": "", "text": "wrought by the application of § 3553(b)(2) is of no moment to the sentence imposed upon him. In fine, this is a situation where the parties should delope and, thus, save themselves for a more serious encounter. (3) Number of Child Pornography Images We have made it plain that a person does knowingly receive and possess child pornography images when he seeks them out over the internet and then downloads them to his computer. In fact, we have declared that, “[i]n the electronic context, a person can receive and possess child pornography without downloading it, if he or she seeks it out and exercises dominion and control over it.” Romm, 455 F.3d at 998; see also United States v. Tucker, 305 F.3d 1193, 1204 (10th Cir.2002). Thus, Kuchinski properly concedes that he did knowingly receive and possess the 110 images that he downloaded. But he was charged with many more — an additional 13,904 to 17,984 images, which appeared in his cache files. That makes a substantial difference to the calculation of his advisory Guideline range. Pursuant to the Sentencing Guidelines, the base offense level for his offense was 17, and, if the offense involved 110 images, 2 levels would be added to that, but if it included over 600 images, 5 levels would be added. The difference is wholly related to the cache files. Did Kuchinski knowingly receive and possess the images in those files, or, rather, does the evidence support a determination that he did? We think not. According to the evidence before the district court, when a person accesses a web page, his web browser will automatically download that page into his Active Temporary Internet Files, so that when the site is revisited the information will come up much more quickly than it would have if it had not been stored on the computer’s own hard drive. When the Active Temporary Internet Files get too full, they spill excess saved information into the Deleted Temporary Internet Files. All of this goes on without any action (or even knowledge) of the computer user. A sophisticated user might know" }, { "docid": "5372532", "title": "", "text": "all the government could rely on was a general pattern of child pornography related searches. See id. at 1202 (noting that “there was no evidence of a temporally proximate search indicating the pursuit of child pornography with respect to the two images submitted to the jury”). There was no evidence that the defendant in Dobbs was a member of any pay-per-view child pornography website, or, indeed, that the defendant had even seen the two images that were the basis of his conviction. Id. at 1207. As the Dobbs court concluded: “the lack of a search-and-creation pattern as it relates to the two images before the jury, when combined with the absence of any evidence establishing that [the defendant] ever saw the images, forfends any view that knowing receipt could have been found by a rational jury.” Dobbs, 629 F.3d at 1207 (emphasis in original). By contrast, in two other cases involving child pornography found in a user’s internet cache, the Tenth Circuit upheld convictions where a review of the evidence showed that the evidence did point eonvincingly towards the defendant’s intent. See United States v. Bass, 411 F.3d 1198 (10th Cir.2005); United States v. Tucker, 305 F.3d 1193, 1204 (10th Cir.2002). In Bass, the court relied on the fact that the defendant used software “specifically aimed at eliminating the digital residue of his illicit activities,” Dobbs, 629 F.3d at 1205, to determine that the defendant did knowingly receive the files stored in his internet cache. See Bass, 411 F.3d at 1202. Similarly, the Tenth Circuit affirmed a conviction for possession where the defendant argued that he never intentionally saved the files in his cache to his hard drive. See Tucker, 305 F.3d at 1204. There, the court focused on the defendant’s admission that he knew the images on the web page would be sent to his browser cache file. Id. Thus, the court held, because the defendant “knew his browser cached the image files, each time he intentionally sought out and viewed the child pornography with his web browser he knowingly acquired and possessed the images.” Id. at 1205. Other" }, { "docid": "23063334", "title": "", "text": "police recovered, however, were, or had been, in the same folder, or location on the hard drive of his computer, in which Brand had saved the picture of “Julie.” IV. The Trial The district court resolved a number of the government’s pre-trial motions. See United States v. Brand, 2005 WL 77055 (S.D.N.Y. Jan.12, 2005). The government sought a ruling (1) that images of child erotica and child pornography from Brand’s computer were admissible as direct evidence of the crimes charged; (2) alternatively, that the images were admissible under Rule 404(b) to prove motive, intent, plan, knowledge, and absence of mistake or accident; and (3) that two transcripts of Internet communications between Brand and two other undercover agents posing as 13-year-old girls, “Jenny” and “Mizbonnie,” were similarly admissible pursuant to Rule 404(b). Id. at *1. On January 12, 2005, the district court (Leisure, J.) issued a preliminary ruling on one of the government’s in limine motions. The district court held that the images of child pornography and child erotica were not admissible as direct proof of either of the crimes charged. Id. at *3. However, the court concluded that the images were admissible under Rule 404(b) because the government was planning to offer the images “for a permissible purpose other than to show a propensity to commit the crimes charged.” Id. at *5. The court, noting that “defendant’s state of mind [would] likely be a central issue at trial,” determined that the images were probative of Brand’s intent. Id. The court found that “evidence that Brand exhibited an interest in child erotica and child pornography on the internet in the period leading up to the charged conduct is pertinent to whether he used the internet in an attempt to engage in sexual conduct with ‘Julie.’ ” Id. Subsequently, at trial, the district court allowed the government to introduce the sixteen images of child pornography and child erotica from Brand’s computer. At that time, the district court also issued a limiting instruction, to which Brand objected, regarding the limited evidentiary purpose of the images. In ruling on the government’s in limine motion," }, { "docid": "5372530", "title": "", "text": "have found that the evidence established the essential elements of the offense beyond a reasonable doubt.” United States v. Lopez, 74 F.3d 575, 577 (5th Cir.1996). We address Winkler’s arguments under that standard. A. Winkler’s Conviction for Knowing Receipt of Child Pornography Winkler argues that his conviction for Count One must be set aside because the government failed to prove that he knowingly received the two files at issue. He argues that the most the evidence shows is that he viewed those two videos over the internet, and that he was unaware that the files would be automatically downloaded into the temporary cache on his staff computer. Thus, he asserts that those facts cannot support a conviction for knowing receipt of electronic child pornography. We disagree. To be sure, the exact contours of the crime of “knowingly receiving” electronic child pornography in a constantly shifting technological background are murky. Part of the problem is that computers connected to the internet store vast quantities of data about which many users know nothing. As a user browses the internet, the computer stores images and text and other kinds of data in its temporary memory the way a ship passing through the ocean collects barnacles that cling to its hull. Thus, there is some risk that the computer of an internet user not intending to access child pornography may be infected with child pornography. Understandably, our sister circuits have struggled with whether to impute knowledge from the presence of illicit files found in such temporary storage. The Tenth Circuit recently reversed a conviction for knowing receipt of child pornography based entirely on two electronic photographs found only in the defendant’s internet cache. United States v. Dobbs, 629 F.3d 1199, 1201 (10th Cir.2011). The Tenth Circuit based its ruling on the fact that there was no evidence that the defendant had accessed the files stored in the computer’s cache, and there was no evidence that the defendant knew of the computer’s automatic-caching function or that the images had come to the defendant’s computer as a result of a specific pornography related internet search —" }, { "docid": "22842211", "title": "", "text": "would contain evidence of a crime had he received or downloaded images in violation of § 2252. Thanks to the long memory of computers, any evidence of a crime was almost certainly still on his computer, even if he had tried to delete the images. FBI computer experts, cited in the affidavit, stated that “even if ... graphic image files[] have been deleted ... these files can easily be restored.” In other words, his computer would contain at least the digital footprint of the images. It was unlikely that evidence of a crime would have been stale or missing, as less than four months had elapsed between the closing of the Lolitagurls.com website and the execution of the search warrant. See United States v. Lacy, 119 F.3d 742, 746 (9th Cir.1997) (holding that the nature of the crime involving child pornography, as set forth in the affidavit, “provided ‘good reason[ ]’ to believe the computerized visual depictions downloaded by Lacy would be present in his apartment when the search was conducted ten months later”). Given this triad of solid facts — the site had illegal images, Gourde intended to have and wanted access to these images, and these images were almost certainly retrievable from his computer if he had ever received or downloaded them — the only inference the magistrate judge needed to make to find probable cause was that there was a “fair probability” Gourde had, in fact, received or downloaded images. Gates supports the principle that a probable cause determination may be based in part on reasonable inferences. See 462 U.S. at 240, 103 S.Ct. 2317 (noting that a magistrate judge may “draw such reasonable inferences as he will from the material supplied to him by applicants for a warrant”). Here, the reasonable inference that Gourde had received or downloaded images easily meets the “fair probability” test. It neither strains logic nor defies common sense to conclude, based on the totality of these circumstances, that someone who paid for access for two months to a website that actually purveyed child pornography probably had viewed or downloaded such images" }, { "docid": "22112732", "title": "", "text": "the laptop should also be excluded as “fruit of the poisonous tree.” The district court concluded that Farley had been arrested when the agents detained him on the plane and that the search of his briefcase was permissible. Therefore, the printed Mapquest directions were admissible and consent to search the laptop was validly obtained. The government anticipated that Farley would claim at trial that he had not actually intended to have sex with a child, and it wanted to put into evidence the child pornography found on his computer to show that he had an “unhealthy or prurient interest” in sex with children. So the government gave notice that it intended to offer the child pornography from Farley’s laptop either as inextricably intertwined evidence or as extrinsic evidence of his intent under Fed.R.Evid. 404(b). Farley responded with a motion in limine to exclude the child pornography images, arguing that their probative value was outweighed by their prejudicial impact because the government could not prove exactly how they had gotten onto his computer and because the criminal intent for a child pornography offense was not the same as the intent required for the crimes with which he was charged. After the government indicated that it would limit its offer of the child pornography evidence to only those images depicting girls of similar age to Farley’s intended victim, the court preliminarily ruled that those images were admissible as evidence intrinsic to the charged offenses and denied Farley’s motion to exclude them. During the trial itself, when the issue arose again, the court allowed the government to introduce ten of the images. Meanwhile, Farley sought to introduce two pieces of evidence he said would help prove that he lacked any intent to have sex with a child. He filed notice of his intent to introduce the results of a polygraph examination he had taken several months after his arrest. The examiner, hired by Farley, found no deception indicated when Farley answered “No” to the question “When you arrived at the Atlanta airport on May 15th, were you planning to engage in sexual activity" }, { "docid": "15656632", "title": "", "text": "issu,e is not whether Mr. Bass might have suspected child pornography was somehow embedded in his computer, but whether he knowingly possessed child pornography. The court’s decision effectively rewrites the statute to criminalize viewing child pornography via computer. As the court notes, we review sufficiency of the evidence de novo, “viewing the evidence in the light most favorable to the government and asking whether a reasonable jury could find the defendant guilty beyond a reasonable doubt.” United States v. Campos, 221 F.3d 1143, 1151 (10th Cir.2000). “An act is done ‘knowingly’ if done voluntarily and intentionally, and not because of mistake or accident or other innocent reason.” United States v. Fabiano, 169 F.3d 1299, 1303 (10th Cir.1999). Possession connotes the ability to exercise control over something. Tucker, 305 F.3d at 1204; Simpson, 94 F.3d at 1380. Thus, knowing possession of child pornography has been found where images were intentionally downloaded to a hard drive or disk, United States v. Lacy, 119 F.3d 742, 749 (9th Cir.1997), where they were attached to email messages, United States v. Kimler, 335 F.3d 1132, 1140 (10th Cir.2003), and where the defendant knew images were being automatically saved to his computer and he later re-accessed them. Tucker, 305 F.3d at 1205. Mr. Bass intentionally sought out and viewed child pornography on the internet; however, none of the established indicators of knowing possession are present. Evidence that he intentionally downloaded child pornography or saved any of the images to disk is non-existent. See Tr. 59-GO. He did not attach any child pornography to email. Tr. 132, 142. The evidence also fails to prove that Mr. Bass knew his computer automatically saved the images he viewed on the internet, see Tr.117-18, or that he re-accessed such images after they had been automatically saved. Tr. 132. Mr. Bass did use the software Window Washer and History Kill, and based on this fact, the court concludes the evidence was sufficient to prove Mr. Bass knew the images he viewed were being stored in his computer and that he was exercising control over them. However, given the record here, this" }, { "docid": "5372537", "title": "", "text": "cache”). The various proxies other courts have used to determine whether a defendant knowingly received the illicit material, whether it is the defendant’s knowledge of the cache function, a search pattern for child pornography, evidence of deleting illicit files after the fact, or the use of cache cleaning soft ware, all go to that central issue. But none of those factors is talismanic. The duty of the appellate court is to discern, based on all the evidence, whether the jury could have found knowing receipt. As the cases in our sister circuits show, that inquiry is highly fact specific and not tied to whether the files at issue were found in a cache directory or, alternatively, in the user controlled portion of the hard drive. This reading of the statute not only comports with the ordinary, everyday meaning of the word “receive” — -which we are bound to respect in the absence of an alternative statutory definition, see United States v. Dickson, 632 F.3d 186, 189 (5th Cir.2011) — but also prevents savvy users of child pornography from using the technologically static nature of our opinions as a basis for engaging in precisely the behavior the anti-child pornography statutes were meant to forbid. The facts in this case are far more like those in Tucker, Bass, Romm and Pruitt than those in Dobbs and Kuchinski. “The mere presence of the files in the cache is certainly proof that the files were received.” Dobbs, 629 F.3d at 1205 (emphasis in original). The only question is whether that receipt was knowing. In stark contrast to Dobbs — where the evidence supporting the government’s case was tenuous at best — the evidence from which a rational jury could infer that Winkler himself sought out, downloaded, viewed and had the ability to manipulate the images at issue in this ease is overwhelming. Crucially, the government elicited evidence from which the jury could infer that the files at issue came from the members-only section of a child pornography site — the same source from which the files at issue in Count Five came. Given the" }, { "docid": "5372545", "title": "", "text": "for acquittal during trial. Thus, the government argues, his conviction must be reviewed under the stringent \"manifest miscarriage of justice” standard. See United States v. Phillips, 477 F.3d 215, 219 (5th Cir.2007). We need not decide that question, however, because we conclude that the evidence supports Winkler’s conviction under the standard for the review of a jury’s verdict. . The other problem that courts have grappled with, and which Winkler raises in passing, is the difference between the quantum of proof necessary to show \"knowing receipt” of child pornography as opposed to what some courts have characterized as the lesser included offense of \"knowing possession.” See, e.g., United States v. Miller, 527 F.3d 54, 64 (3d Cir.2008) (observing that \"the quantum of evidence required to prove knowing receipt of a downloaded file may, in some situations, be greater than that minimally required to prove knowing possession of the file”). It is true, for example, that one may accidentally receive a file, and then, after consideration, decide to keep it, and thus be liable for knowing possession but not receipt. There may be other circumstances in which possession can be proven but receipt cannot. But that distinction is not at issue here, and we therefore need not opine on it now. See United States v. Dobbs, 629 F.3d 1199, 1206 (10th Cir.2011) (declining to opine on the difference between knowing possession and knowing receipt). . This court's only directly relevant case, an unpublished disposition, is consistent with the decisions of our sister circuits. See United States v. Calderon, 318 Fed.Appx. 277 (5th Cir.2009). There, we were faced with the question of whether files held only in an internet cache could be counted for the purpose of sentencing. Id. at 278. The defendant argued, on the basis of the Ninth Circuit’s conclusion in Kuchinski, that such images could not be used. Id. We rejected that argument, noting that \"there is ample evidence in this record to support the district court's determination that [the defendant] possessed the requisite images,\" including \"a long-term history with child pornography, [the defendant's] activity procuring child pornography ..." }, { "docid": "5372531", "title": "", "text": "the internet, the computer stores images and text and other kinds of data in its temporary memory the way a ship passing through the ocean collects barnacles that cling to its hull. Thus, there is some risk that the computer of an internet user not intending to access child pornography may be infected with child pornography. Understandably, our sister circuits have struggled with whether to impute knowledge from the presence of illicit files found in such temporary storage. The Tenth Circuit recently reversed a conviction for knowing receipt of child pornography based entirely on two electronic photographs found only in the defendant’s internet cache. United States v. Dobbs, 629 F.3d 1199, 1201 (10th Cir.2011). The Tenth Circuit based its ruling on the fact that there was no evidence that the defendant had accessed the files stored in the computer’s cache, and there was no evidence that the defendant knew of the computer’s automatic-caching function or that the images had come to the defendant’s computer as a result of a specific pornography related internet search — all the government could rely on was a general pattern of child pornography related searches. See id. at 1202 (noting that “there was no evidence of a temporally proximate search indicating the pursuit of child pornography with respect to the two images submitted to the jury”). There was no evidence that the defendant in Dobbs was a member of any pay-per-view child pornography website, or, indeed, that the defendant had even seen the two images that were the basis of his conviction. Id. at 1207. As the Dobbs court concluded: “the lack of a search-and-creation pattern as it relates to the two images before the jury, when combined with the absence of any evidence establishing that [the defendant] ever saw the images, forfends any view that knowing receipt could have been found by a rational jury.” Dobbs, 629 F.3d at 1207 (emphasis in original). By contrast, in two other cases involving child pornography found in a user’s internet cache, the Tenth Circuit upheld convictions where a review of the evidence showed that the evidence did" }, { "docid": "2323781", "title": "", "text": "v. Dodds, 347 F.3d 893, 897 (11th Cir.2003). “A district court abuses its discretion if it misapplies the law or makes findings of fact that are clearly erroneous.” Ambrosia Coal & Constr. Co. v. Pages Morales, 368 F.3d 1320, 1332 (11th Cir.2004) (citations omitted). The district court found that the uncharged evidence was admissible under Rule 404(b) of the Federal Rules of Evidence. That rule provides, Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. Without question, the uncharged evidence was probative of Maxwell’s knowledge and intent. Therefore, the district court did not abuse its discretion in admitting it. B. Maxwell next argues the evidence against him was insufficient to establish that he knew that the charged disks contained images of child pornography. Knowledge is an element of the charged offenses. See 18 U.S.C. § 2252A(a)(5)(B) (establishing criminal liability for any person who “knowingly possesses” material “that contains an image of child pornography”). We review challenges to the sufficiency of the evidence de novo. United States v. Alaboud, 347 F.3d 1293, 1296 (11th Cir. 2003). In so doing, we view the evidence in the light most favorable to the Government, taking all reasonable inferences and credibility determinations reached in the Government’s favor. Id. Because Maxwell chose not to testify, evidence of his knowledge was necessarily circumstantial. The Government presented considerable circumstantial evidence of Maxwell’s knowledge. First, Wallace and Agent Dubord indicated that the disks were found in Maxwell’s room among Maxwell’s possessions. Some of the disks contained labels such as “adult and young” and “pre teens,” suggesting that the disks’ owner" }, { "docid": "23630524", "title": "", "text": "witness, and that images were recovered from his camera. Schales does not challenge the district court’s ruling that this evidence was separately admissible as: (1) “other act” evidence “inextricably intertwined” with the crime with which he was charged, see United States v. Rrapi, 175 F.3d 742, 748-49 (9th Cir.1999); (2) Rule 404(b) evidence to show knowledge, intent, modus operands and absence of mistake; and (3) Rule 404(b) evidence of consciousness of guilt with respect to his attempts to delete the images on his camera, see United States v. Meting, 47 F.3d 1546, 1557 (9th Cir.1995). Instead, he contends that this evidence was cumulative because there was a signif icant amount of testimony at trial dealing with him using photographs of local minor girls to create morphed images. A district court’s evidentiary rulings are reviewed for an abuse of discretion, United States v. Alvarez, 358 F.3d 1194, 1205 (9th Cir.2004), and will be reversed only if such error “more likely than not affected the verdict.” United States v. Pang, 362 F.3d 1187, 1192 (9th Cir.2004). Schales fails to explain how the court abused its discretion by admitting limited evidence of the Wal-Mart incident. Although the government introduced testimony that the defendant produced obscene images by morphing images, the Wal-Mart incident was part of the res gestae of the charged offenses and provided the jury with an example of how Schales would surreptitiously take photographs of minor girls in his community. Furthermore, the court limited the government to introducing only three of the dozens of recovered images from his camera, prohibited the introduction of Schales’s false statements to the police, and did not allow admission of the fact that Schales had been issued a citation for his actions. Even if the admitted evidence should have been excluded, Schales fails to establish that this error more likely than not affected the verdict and thus was not harmless error. See Pang, 362 F.3d at 1192 (“Even if we find error, we will only reverse if an erroneous evidentiary ruling ‘more likely than not affected the verdict.’ ”) (citation omitted). E. Schales Did Not Qualify" }, { "docid": "23063358", "title": "", "text": "arguendo that Brand established inducement by a preponderance of the evidence, based on the circumstances of the Internet chat room and Brand’s “prompt response” to “Julie’s” single mention of “sex stuff,” the jury could rationally find that Brand possessed the requisite predisposition beyond a reasonable doubt. Harvey, 991 F.2d at 993. 11. Evidentiary Rulings Brand contends that the district court’s admission of images of child pornography and child erotica was erroneous and highly prejudicial. He argues that his possession of these images is not sufficiently similar to the crimes charged to make it probative of either intent under Federal Rule of Evidence 404(b) or of predisposition for purposes of entrapment. As noted above, the district court initially admitted a binder of sixteen images found on Brand’s computer under Rule 404(b). After Brand claimed entrapment, the court admitted the remaining pictures as evidence of Brand’s predisposition. The government argues that both of the district court’s evidentiary rulings were correct. Specifically, it contends that the images of child pornography and child erotica Brand possessed were properly admitted as relevant to the primary issue in dispute, namely Brand’s intent to meet a minor for sex. The government further asserts that, even if the district court erred in admitting the images under Rule 404(b), these images, as well as the remaining images, were properly admitted at trial to show Brand’s predisposition. A. Rule 404(b) The Supreme Court has noted that Federal Rule of Evidence 404(b) “generally prohibits the introduction of evidence of extrinsic acts that might adversely reflect on the actor’s character, unless that evidence bears upon a relevant issue in the case such as motive, opportunity, or knowledge.” Huddleston v. United States, 485 U.S. 681, 685, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). However, in Huddleston, the Court was careful to point out that “[e]x-trinsie acts evidence may be critical to the establishment of the truth as to a disputed issue, especially when that issue involves the actor’s state of mind and the only means of ascertaining that mental state is by drawing inferences from conduct.” Id. “Since a district court is in" }, { "docid": "5372538", "title": "", "text": "child pornography from using the technologically static nature of our opinions as a basis for engaging in precisely the behavior the anti-child pornography statutes were meant to forbid. The facts in this case are far more like those in Tucker, Bass, Romm and Pruitt than those in Dobbs and Kuchinski. “The mere presence of the files in the cache is certainly proof that the files were received.” Dobbs, 629 F.3d at 1205 (emphasis in original). The only question is whether that receipt was knowing. In stark contrast to Dobbs — where the evidence supporting the government’s case was tenuous at best — the evidence from which a rational jury could infer that Winkler himself sought out, downloaded, viewed and had the ability to manipulate the images at issue in this ease is overwhelming. Crucially, the government elicited evidence from which the jury could infer that the files at issue came from the members-only section of a child pornography site — the same source from which the files at issue in Count Five came. Given the evidence at trial, and especially the evidence that Winkler repeatedly paid for members-only child pornography sites, the jury could have concluded that Winkler paid for access to the child pornography website, entered a password and username to access the two videos in Count One, and had them transmitted to his computer. Moreover, the jury heard that the only way those files could have been copied to the cache was by Winkler’s decision to click and watch the videos, in contrast to the way the still photos at issue in Dobbs (and many of the other cases on which the parties rely) can arrive in the cache (for example, by accessing a web page on which there is child pornography without intending to access child pornography). Those facts completely differentiate this case from Dobbs. The jury also heard testimony that Winkler had downloaded dozens of images of child pornography, and that the files he received from those sites were often hidden (albeit amateurishly) behind password walls in his own user account or in unnatural locations in" }, { "docid": "5372539", "title": "", "text": "evidence at trial, and especially the evidence that Winkler repeatedly paid for members-only child pornography sites, the jury could have concluded that Winkler paid for access to the child pornography website, entered a password and username to access the two videos in Count One, and had them transmitted to his computer. Moreover, the jury heard that the only way those files could have been copied to the cache was by Winkler’s decision to click and watch the videos, in contrast to the way the still photos at issue in Dobbs (and many of the other cases on which the parties rely) can arrive in the cache (for example, by accessing a web page on which there is child pornography without intending to access child pornography). Those facts completely differentiate this case from Dobbs. The jury also heard testimony that Winkler had downloaded dozens of images of child pornography, and that the files he received from those sites were often hidden (albeit amateurishly) behind password walls in his own user account or in unnatural locations in the computer’s file hierarchy rather than the normal location for downloaded material. The jury also heard that Winkler kept a catalogue of child pornography links, masquerading as a list of medical studies, in one of his hard drives. Those facts speak to a pattern of child pornography receipt and possession that could also have caused a rational jury to conclude that Winkler knowingly received the files in Count One. In sum, this is not the exceptional case in which the government has persisted in bringing a criminal prosecution against the unknowing victim of a computer’s inner workings. B. Sufficiency of the Evidence Supporting Count Five Winkler makes a series of arguments disputing the proof the government adduced showing that he downloaded the files at issue in Count Five. He relies on a Wal-mart store receipt showing that he purchased several items with his credit card at 10:52 p.m. on December 21, 2004. He argues that because the government’s evidence showed the illicit files in question were downloaded at 10:53 p.m. on the same day, “it" }, { "docid": "23137531", "title": "", "text": "Irving’s Honduras crimes, it follows that the Mexico acts are likewise admissible to corroborate his confession in his journal to those crimes in Honduras. Accordingly, we hold the prosecution presented substantial independent evidence necessary to establish the trustworthiness of Irving’s journal. Irving’s burden with respect to sufficiency of the evidence is weighty, and it has not been met in this case. Viewing the evidence in its totality and drawing all inferences in favor of the government, the evidence is sufficient to allow any reasonable juror to find defendant guilty on counts two and three beyond a reasonable doubt. The district court did not err in failing to grant Irving’s Rule 29 motion with respect to those counts, and we therefore affirm appellant’s conviction on them. II Receiving and Distributing Pornographic Materials (Counts Four and Five) Irving additionally maintains there was insufficient proof for the jury to convict him on count four, which charged him with receiving and distributing material that contains child pornography in violation of 18 U.S.C. § 2252A(a)(2)(B), and count five, which charged him with possession of an image containing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Irving’s argument is that (1) the government failed to proffer evidence beyond the videos themselves to prove that the children in the videos were in fact real children, and (2) there was no proof that he willfully downloaded the images onto his computer. Although the trial court carefully instructed the jury using a constitutionally permissible definition of child pornography, Irving contends the jury may have convicted him for possession and receipt of child pornography that did not contain real children and thus might have violated his First Amendment right to freedom of speech. We use the same sufficiency of the evidence standard set forth earlier to determine whether Irving’s challenge with respect to counts four and five should succeed. A. Extrinsic Evidence of Use of Real Children To convict Irving under counts four and five the prosecution had to show that appellant knowingly received or possessed materials containing child pornography. See 18 U.S.C. § 2252A(a)(2)(B) and (a)(5)(B). Accordingly, Irving" }, { "docid": "9424282", "title": "", "text": "McKibbins has not challenged the introduction of that photograph. The case went to the jury, which convicted McKibbins on all three counts. This appeal followed. II The only issue before us is whether the district court abused its discretion in admitting the images found at McKibbins’s house and, if so, whether that error was nonetheless harmless. Because we have disapproved of the “inextricably intertwined” rationale, United States v. Gorman, 613 F.3d 711, 719 (7th Cir.2010), and the district court did not focus on it much, we ignore it. In fact, McKibbins concedes that the district court admitted the sus pected child pornography and profile pictures as direct evidence of the obstruction charge. The question then becomes whether the district court was right to categorize those images in this way, or if it instead needed to treat them as images of prior bad acts under Rule 404(b). Because we find that the district court did not abuse its discretion by deeming the images evidence on the obstruction count, we do not reach the question whether the evidence could have come in under Rule 404(b) (although we see this as a much closer call), as Rule 404(b) is not concerned with direct evidence of a charged crime. See United States v. Adams, 628 F.3d 407, 414 (7th Cir.2010). Under section 1512(c), the government had to prove that McKibbins “corruptly” altered, destroyed, mutilated, or concealed the images on his computer, CDs, and disks, and that he did so with the intent to impair the objects’ “integrity or availability for use in an official proceeding.” 18 U.S.C. § 1512(c). The intent element is important here because the word “corruptly” is what “serves to separate criminal and innocent acts of obstruction.” United States v. Matthews, 505 F.3d 698, 705 (7th Cir.2007). In Arthur Andersen, LLP v. United States, 544 U.S. 696, 125 S.Ct. 2129, 161 L.Ed.2d 1008 (2005), the Supreme Court emphasized the government’s burden in proving intent for an obstruction offense under section 1512(c). Without a showing of a willful, corrupt mens rea that has a nexus to an official proceeding, the government cannot" }, { "docid": "23063361", "title": "", "text": "court administered an appropriate limiting instruction.” Id. at 136 (citing Huddleston, 485 U.S. at 691-92, 108 S.Ct. 1496). Before trial, during the government’s in limine motion, and at trial, the government contended that “Brand’s intent to commit the charged offenses will be the ‘primary dispute.’ ” Brand, 2005 WL 77055, at *4. Similarly, in making its evi-dentiary rulings, the district court concluded that Brand “put his intent to commit the charged crimes at issue.” Id. Brand does not challenge the fact that his intent was at issue. Instead, Brand challenges the district court’s admission of sixteen images of child pornography on the basis that these images were not relevant to a disputed issue. Specifically, he claims that these images were not “sufficiently similar” to the crimes charged to be relevant to the issue of intent. We disagree. We have long acknowledged that “prior act evidence is generally admissible to prove that the defendant acted with the state of mind necessary to commit the offense charged.” United States v. Zackson, 12 F.3d 1178, 1182 (2d Cir.1993). The government is required to establish only a “similarity or some connection” to establish that a prior act is relevant to one of the elements (in this case, intent) of the crime charged. Garcia, 291 F.3d at 137. Relevant evidence includes any “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401. The images Brand possessed on his computer were relevant to determining whether, in traveling across state lines to meet “Julie” and in attempting to entice “Julie,” Brand intended to engage in illicit sexual activity or, alternatively, some more innocuous act. As the government points out, “[t]hese images provided a glimpse into Brand’s sexual interest in children and, as such, were highly probative of whether he wanted to have sex with ‘Julie’ or simply to give her voice lessons, as Brand essentially contended at trial.” That is, the fact that Brand had images of child pornography on his computer" } ]

[ { "docid": "22762355", "title": "", "text": "custody violated the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments. The district court dismissed that complaint without prejudice prior to service of process, holding that Hughes’s claims of illegal arrest, search and seizure, and coerced confession would have the effect of undermining his burglary conviction and were therefore barred by the rule in Heck. In addition, it held that his post-custody claims did not allege physical injury — only mental anguish, humiliation, and emotional distress — and therefore were barred under 42 U.S.C. § 1997e(e). Hughes filed a second complaint in 2001, which is the subject of this appeal, similarly alleging violations of his Fourth, Fifth, and Fourteenth Amendment rights. Unlike his first complaint, however, Hughes’s second complaint explicitly seeks compensatory damages for property seized by the police officers. In addition, it does not seek damages for time spent incarcerated. The district court again dismissed the complaint prior to service of process, relying on Heck and § 1997e(e) as well as the doctrine of res judicata for the claims raised in Hughes’s first complaint. It dismissed Hughes’s deprivation of property claim as barred by the two-year statute of limitations. Hughes now appeals. STANDARD OF REVIEW Informa pauperis proceedings are governed by 28 U.S.C. § 1915. Subsection (e)(2) of that statute provides that “the court shall dismiss the case at any time if the court determines that ... (B) the action or appeal — (i) is frivolous or malicious [or]; (ii) fails to state a claim upon which relief may be granted.... ” 28 U.S.C. § 1915(e)(2). A district court’s sua sponte dismissal for failure to state a claim under § 1915(e)(2)(B)(ii) is reviewed de novo, viewing the allegations in the complaint as true. Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir.1997). Similarly, a district court’s ruling on issues of res judicata is reviewed de novo. NAACP v. Hunt, 891 F.2d 1555, 1560 (11th Cir.1990). A district court’s sua sponte dismissal for frivolity under 28 U.S.C. § 1915(e)(2)(B)(i) is reviewed for abuse of discretion. Bilal v. Driver, 251 F.3d 1346, 1348 (11th Cir. 2001). “Pro se pleadings are held to" } ]

[ { "docid": "22224379", "title": "", "text": "more carefully drafted complaint might state a claim upon which relief can be granted, ... a district court should give a plaintiff an opportunity to amend his complaint instead of dismissing it.” Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir.1991). However, “if a more carefully drafted complaint could not state a claim ..., dismissal with prejudice is proper.” Id. In their brief to this Court, Plaintiffs set forth eleven additional allegations which they claim would further demonstrate C&L’s “scienter” and “the existence of a duty to disclose on the part of [C&L] under Rudolph.” However, after careful review of these additional allegations, and in light of Rule 9(b) and Central Bank, we conclude that the district court did not err in denying Plaintiffs’ motion for leave to amend. See Pitt, 928 F.2d at 1112. VII. CONCLUSION We agree with the district court that Plaintiffs’ amended complaint fails to state a claim against GY&S and C&L for primary liability under § 10(b). We also hold that the district court did not abuse its discretion by denying Plaintiffs’ motion for leave to amend. Accordingly, the judgment of the district court is AFFIRMED. . Settlements with several defendants received final court approval in 1998 and 1999. Voluntary dismissals were granted as to several defendants prior to September 30, 1999. On September 30, 1999, the district court granted Plaintiffs' motion for entry of final default judgment as to Victor Incendy and Bernard Levy. The district court ordered the case closed and denied all pending motions as moot. A separate final default judgment was entered the same day. . At the motion to dismiss stage, we accept all well-pleaded facts as true, and all reasonable inferences therefrom are construed in the light most favorable to the plaintiff. See Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273 n. 1 (11th Cir. 1999). . Generally accepted auditing standards (\"GAAS”) are the standards prescribed by the Auditing Standards Board of the American Institute of Certified Public Accountants (\"AICPA\") for the conduct of auditors in the performance of an examination. See SEC v. Price Waterhouse, 797 F.Supp." }, { "docid": "8330983", "title": "", "text": "language — “including but not limited to” — as the original complaint, which the Court criticized in dismissing plaintiff’s negligence claims. Moore, 840 F.Supp.2d at 1352. However, plaintiff has now pled factual information in the amended complaint about what product the decedent was prescribed and when, sufficient to allege a causal connection between the decedent’s taking of phenytoin and his injuries and sufficient to apprise Pfizer of plaintiffs claim. . Plaintiff has once again requested leave to amend her complaint if the Court finds that dismissal of any of her claims is appropriate. The Court has already given plaintiff a chance to amend her complaint and will not grant her perpetual bites at the apple. See Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir.1991) (overruled in part by Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir.2002)o (en banc)) (\"Where a more carefully drafted complaint might state a claim, a. plaintiff must be given, at least one chance to amend the complaint before the district court dismisses the action with prejudice.”) (emphasis added)." }, { "docid": "17991950", "title": "", "text": "by Greater Ministries to act on its behalf, and we agree with First Union that these allegations foreclose the possibility of the trustee’s prevailing on any of his theories. Even if, as the complaint alleges, First Union had cause to be particularly cautious in the handling of Greater Ministries’ accounts, the instant complaint alleges that the bank met this higher standard of diligence. If indeed Payne had complete and legal authorization from Greater Ministries, as alleged by the complaint, First Union is not responsible for Payne’s diverting the funds to his own purposes. Such allegations foreclose the possibility that First Union was responsible to Greater Ministries for Payne’s withdrawals, and dismissal of this claim was appropriate. See Pettigrew v. Citizens Trust Bank, 229 B.R. 39 (N.D.Ga. 1998) (finding a bank not liable where the bank’s sole contacts with the accountholder entity were the embezzlers themselves). III. For the foregoing reasons, we agree with the defendant that the trustee has not stated a claim upon which relief can be granted. This, however, is not the end of the case. Because the Notice of Appeal on this case was filed before Dec. 10, 2002, it is governed by Bank v. Pitt, 928 F.2d 1108 (11th Cir.1991), overruled by Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541 (11th Cir.2002) (en banc). Under Pitt, district courts are required to give plaintiffs at least one opportunity to amend a complaint before the district court dismisses an action with prejudice. Pitt, 928 F.2d at 1112. Although such leave need not be granted where amendment would be futile, and we think that the issue of futility here is close, the principles delineated in Pitt counsel us to err on the side of generosity to the trustee. Because a more carefully drafted complaint could conceivably state a valid claim, we VACATE the dismissal and REMAND, with instructions to allow the trustee leave to amend his complaint. . \"Little children, you are of God, and have overcome them; for he who is in you is greater than he who is in the world.” 1 John 4:4 (Revised" }, { "docid": "2321148", "title": "", "text": "Fed.R.Civ.P. 12(b)(6) “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, 102, 2 L.Ed.2d 80 (1957). In this case, the district court granted the company’s motion to dismiss because the original complaint had failed to assert a claim upon which relief could be granted. Rosen, however, sought leave of the district court to include the claim that the company was the de facto plan administrator and the committee was an inactive entity. The district court denied his motion. Appellate review of this decision is limited to a consideration of whether the district court abused its discretion. Rhodes v. Amarillo Hospital Dist., 654 F.2d 1148, 1153 (5th Cir. Unit A, Sept. 1981); Thomas v. Farmville Mfg. Co. Inc., 705 F.2d 1307 (11th Cir.1983). This court, however, has recognized that “a grant of leave to amend is particularly appropriate following dismissal of a complaint for failure to state a claim.” Thomas, 705 F.2d at 1307. In addition, this court has stated: If our precedent leaves any doubt regarding [the] rule to be applied in this circuit, we now dispel that doubt by restating the rule. Where a more carefully drafted complaint might state a claim, a plaintiff must be given at least one chance to amend the complaint before the district court dismisses the action with prejudice. Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir.1991). Moreover, Rule 15(a) of the Federal Rules of Civil Procedure requires that “leave shall be freely given when justice so requires.” The Supreme Court has interpreted Rule 15(a) such that: In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be “freely given.” Foman v. Davis, 371 U.S. 178, 83" }, { "docid": "22036054", "title": "", "text": "WILSON, Circuit Judge: Andrew J. Wagner appealed the district court’s dismissal of his case pursuant to Federal Rule of Civil Procedure 12(b)(6). He asserted that the district court erred in finding that he failed to state a claim upon which relief could be granted. After hearing oral argument, a panel of this Court vacated the district court’s dismissal of Wagner’s case. Wagner v. Daewoo Heavy Indus. Am. Corp., 289 F.3d 1268, 1275 (11th Cir.) (per curiam), vacated, 298 F.3d 1228 (11th Cir.2002) (per curiam). Relying upon Bank v. Pitt, 928 F.2d 1108 (11th Cir.1991) (per curiam), the panel held that the district court should not have dismissed Wagner’s case without providing him an opportunity to amend his complaint. Wagner, 289 F.3d at 1273. We subsequently vacated the panel’s opinion and ordered that the case be reheard en banc. Wagner, 298 F.3d at 1228. We thus address en banc whether a district court is required to grant a plaintiff leave to amend his complaint sua sponte when the plaintiff, who is represented by counsel, never filed a motion to amend nor requested leave to amend before the district court. In so doing, we overrule Bank and substitute the following rule: A district court is not required to grant a plaintiff leave to amend his complaint sua sponte when the plaintiff, who is represented by counsel, never filed a motion to amend nor requested leave to amend before the district court. We, however, conclude that this rule will be applied prospectively. I. The allegations in the complaint are discussed in, and a copy of the complaint is set forth in, the panel’s opinion. See Wagner, 289 F.3d at 1270-73, 1277-83. After hearing oral argument, the panel concluded that the complaint failed to state a claim upon which relief could be granted and that it was not obvious that a more carefully drafted complaint would fail to state a claim. Id. at 1271, 1274. We agree. II. In this en banc opinion, we address whether this case should be remanded to the district court with instructions to permit the plaintiff to amend his" }, { "docid": "22582603", "title": "", "text": "to amend FCA complaints to cure a lack of particularity. See, e.g., United States ex rel. McCoy v. Calif. Med. Rev., Inc., 723 F.Supp. 1363, 1366 (N.D.Cal.1989). In this case, however, Karvelas never filed a motion to amend pursuant to Fed.R.Civ.P. 15(a), which provides for amendments as of right in the absence of a responsive pleading. Therefore, the only issue before us is whether the district court erred in failing sua sponte to provide Karvelas an opportunity to amend before dismissing his complaint with prejudice. Absent exceptional circumstances, a district court has no obligation to invite a plaintiff to amend his or her complaint when the plaintiff has not sought such amendment. See Emerito Estrada Rivera-Isuzu de P.R. Inc. v. Consumers Union, 233 F.3d 24, 30 (1st Cir.2000) (holding that district court did not commit error by “failing to invite Emérito to replead” where “despite its awareness that [the defendant] had called for dismissal [for failure to state a claim based on deficient pleadings], Emérito never amended its complaint as of right ... nor did it formally ask the district court after judgment to permit such an amendment”)(emphasis in the original); see also Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir.2002)(“A district court is not required to grant a plaintiff leave to amend his complaint sua sponte when the plaintiff, who is represented by counsel, never filed a motion to amend nor requested leave to amend before the district court.”). In this case, Karvelas chose not to- file a motion to amend his complaint at any stage of the litigation. Instead, he stood upon his 93-page complaint, even after the defendants filed a 12(b)(6) motion to dismiss that focused on deficiencies in th.e pleadings. Indeed, the district court had already afforded Karvelas a generous opportunity to sharpen his pleadings when it did not dismiss with prejudice the plaintiffs first FCA retaliation complaint against the defendants. Under these circumstances, the district court did not err by failing sua sponte to provide Karvelas an opportunity to amend his complaint before dismissing the case with prejudice. III. Karvelas" }, { "docid": "8714587", "title": "", "text": "must know that it is publishing materially false information or must be severely reckless in publishing such information. The plaintiffs point to no specific internal or external report available at the time of the alleged misstatements that would contradict them. Abrams v. Baker Hughes, Inc., 292 F.3d 424, 432 (5th Cir.2002)(internal citations omitted). The scienter allegations in the Second Amended Consolidated Class Action Complaint are legally inadequate. Under Federal Rule of Civil Procedure 15(a), leave to amend a Complaint “shall be freely given when justice so requires.” Fed. R.Civ.P. 15(a). “A district court need not, however, allow an amendment (1) where there has been undue delay, bad faith, dilatory motive, or repeated failure to cure deficiencies by amendments previously allowed; (2) where allowing amendment would cause undue prejudice to the opposing party; or (3) where amendment would be futile.” Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir.2001)(citing Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). Amendment in the instant case would be futile. The Eleventh Circuit has held that “if a more carefully drafted complaint could not state a claim under the standard of Conley, 355 U.S. at 45-46, 78 S.Ct. 99, dismissal with prejudice is proper.” Bank v. Pitt, 928 F.2d 1108, 1112 (1991). Because the instant Complaint alleges violation of section 10(b) of the Securities Exchange Act of 1934 and 17 C.F.R. § 240.10b-5, dismissal with prejudice is proper if the a more carefully drafted complaint could not state a claim under the heightened pleading standards of the PSLRA and those cases interpreting it. See Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1281 (11th Cir.1999). Numerous separate complaints were originally filed. After those cases were consolidated, the Amended Consolidated Class Action Complaint (DE 37) was filed. On February 26, 2004, the Court gave Plaintiffs permission to file the Second Amended Consolidated Class Action Complaint (DE 43). Plaintiffs have had significant time to carefully draft their Complaint. The Court does not find fault with the drafting of said Complaint, but rather with the legal sufficiency of the facts alleged. The PSLRA stays" }, { "docid": "22036055", "title": "", "text": "a motion to amend nor requested leave to amend before the district court. In so doing, we overrule Bank and substitute the following rule: A district court is not required to grant a plaintiff leave to amend his complaint sua sponte when the plaintiff, who is represented by counsel, never filed a motion to amend nor requested leave to amend before the district court. We, however, conclude that this rule will be applied prospectively. I. The allegations in the complaint are discussed in, and a copy of the complaint is set forth in, the panel’s opinion. See Wagner, 289 F.3d at 1270-73, 1277-83. After hearing oral argument, the panel concluded that the complaint failed to state a claim upon which relief could be granted and that it was not obvious that a more carefully drafted complaint would fail to state a claim. Id. at 1271, 1274. We agree. II. In this en banc opinion, we address whether this case should be remanded to the district court with instructions to permit the plaintiff to amend his complaint. Under Bank, we would answer that question in the affirmative. 928 F.2d at 1112 (‘Where a more carefully drafted complaint might state a claim, a plaintiff must be given at least one chance to amend the complaint before the district court dismisses the action with prejudice.”). We, however, have determined that the Bank rule should no longer be followed. As a result, we overrule Bank and substitute the following rule: A district court is not required to grant a plaintiff leave to amend his complaint sua sponte when the plaintiff, who is represented by counsel, never filed a motion to amend nor requested leave to .amend before the district court. This new rule is more efficient and in line with the critically important concept of finality in our judicial system. Powers v. Boston Cooper Corp., 926 F.2d 109, 112 (1st Cir.1991) (“Finality is a critically important concept in our system of jurisprudence. At some point, battles must end” (internal quotation marks omitted).); see Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1276 (11th" }, { "docid": "22224378", "title": "", "text": "of Cascade’s 10-K, waiting instead until November 29 and December 3,1991. In light of the foregoing considerations, we have considerable doubt that C&L had a duty to disclose arising from the alleged errors in Cascade’s 1991 10-K. However, we need make no such definitive ruling in this case. Rather, given the lack of particularity of Plaintiffs’ allegations with respect to the failure of C&L to withdraw its previous audit reports of Fran’s Fashions and Conston immediately after the September 27, 1991 filing of Cascade’s 10-K, and given the vagueness of the duty, if any, which C&L is alleged to have breached, we hold that Plaintiffs have failed to satisfy the particularity requirements of Rule 9(b). E. Leave to Amend Plaintiffs also argue that the district court erred in denying them leave to amend their complaint in order to make additional allegations regarding C&L’s conduct. The district court denied Plaintiffs’ motion for leave to amend, concluding that the additional allegations would not state a claim under § 10(b). We have recognized that, “[w]here it appears a more carefully drafted complaint might state a claim upon which relief can be granted, ... a district court should give a plaintiff an opportunity to amend his complaint instead of dismissing it.” Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir.1991). However, “if a more carefully drafted complaint could not state a claim ..., dismissal with prejudice is proper.” Id. In their brief to this Court, Plaintiffs set forth eleven additional allegations which they claim would further demonstrate C&L’s “scienter” and “the existence of a duty to disclose on the part of [C&L] under Rudolph.” However, after careful review of these additional allegations, and in light of Rule 9(b) and Central Bank, we conclude that the district court did not err in denying Plaintiffs’ motion for leave to amend. See Pitt, 928 F.2d at 1112. VII. CONCLUSION We agree with the district court that Plaintiffs’ amended complaint fails to state a claim against GY&S and C&L for primary liability under § 10(b). We also hold that the district court did not abuse its discretion by" }, { "docid": "17991951", "title": "", "text": "of the case. Because the Notice of Appeal on this case was filed before Dec. 10, 2002, it is governed by Bank v. Pitt, 928 F.2d 1108 (11th Cir.1991), overruled by Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541 (11th Cir.2002) (en banc). Under Pitt, district courts are required to give plaintiffs at least one opportunity to amend a complaint before the district court dismisses an action with prejudice. Pitt, 928 F.2d at 1112. Although such leave need not be granted where amendment would be futile, and we think that the issue of futility here is close, the principles delineated in Pitt counsel us to err on the side of generosity to the trustee. Because a more carefully drafted complaint could conceivably state a valid claim, we VACATE the dismissal and REMAND, with instructions to allow the trustee leave to amend his complaint. . \"Little children, you are of God, and have overcome them; for he who is in you is greater than he who is in the world.” 1 John 4:4 (Revised Standard). . First Union completed a merger with Wa-chovia Corporation in September 2001. . It is an open question in this Circuit whether a bankruptcy trustee may under some circumstances assert creditors' claims in addition to claims of the estate. Previously, we have held, in a decision expressly limited to the specific facts of that case, that a trustee could not bring such claims. See E.F. Hutton & Co. v. Hadley, 901 F.2d 979, 985-87 (11th Cir.1990). We do not elaborate on the E.F. Hutton holding today because the trustee limits his argument to those claims derived directly from the debtor, Greater Ministries. See Pis.’ Response to Def.’s Mot. to Dismiss at 12, Record at 24 (specifying that the investors are asserting the investors' claims and the trustee is asserting the claims of the bankruptcy estate). . We have previously found that a trustee has standing to sue on behalf of á corporation even when the debtor entity was the wrongdoer. See, e.g., Miller v. San Sebastian Gold Mines, 540 F.2d 807 (5th Cir. 1976);" }, { "docid": "3149012", "title": "", "text": "an enterprise through racketeering activity, we AFFIRM the district court’s dismissal of Plaintiffs’ complaint for failure to state a claim upon which relief could be granted, Fed.R.Civ.P. 12(b)(6). We decline to remand this case to the district court to permit Plaintiffs to amend their complaint. It is clear from the voluminous Complaint and its 104 attached exhibits that Plaintiffs cannot state a claim that any of the Defendants violated § 1962(b) and that Plaintiffs suffered injuries as a result. Of. EEOC v. Ohio Edison Co., 7 F.Sd 541, 546 (6th Cir.1993) (quoting Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir.1991), for the proposition that “[w]here a more carefully drafted complaint might state a claim, a plaintiff must be given at least one chance to amend the complaint before the district court dismisses the action with prejudice”) (emphasis added). Indeed, it is clear that what Plaintiffs have sought to cast as RICO violations are in fact disputes over who was entitled to determine what “reasonable” means in the world of health care costs. The crux of Plaintiffs’ complaint is that whatever a “reasonable charge” might be in any given circumstance, the Defendants intended at all times not to pay that amount. We think that where the law requires that the Defendants pay only the reasonable costs, but does not require reasonableness to be determined by some neutral party and contains no standards whatsoever for gauging what is reasonable, an allegation that the Defendants promised to pay the reasonable charge while intending to pay less than the reasonable charge cannot even state a claim for fraud as a matter of law. . The Defendants filed with the district court an emergency motion to stay the order of remand pending appeal or, in the alternative, for an order vacating the order of remand, which the court denied. Defendants filed a timely notice of cross-appeal challenging the remand of the state law claims to state court. Defendants also filed a motion with this Court to slay the remand pending the outcome of this appeal. This Court denied Defendants’ motion. For ease of reference," }, { "docid": "3149011", "title": "", "text": "... health care providers, conducted by the enterprise as described above, has caused the Plaintiff insureds and the Plaintiff health care providers to suffer damages....”); J.A. at 171 (Complaint ¶ 187) (“The above described scheme to ... attempt to extort acts or omissions against the wills of health care providers, conducted by the enterprise described above, has caused the Plaintiff insureds and the Plaintiff health care providers to suffer dam-ages_”). As we have heretofore explained, Plaintiffs have wholly failed to allege any facts sufficient to state a claim for violation of § 1962(b), i.e., that Defendants acquired or maintained, through a pattern of racketeering activity, an interest in an enterprise. It follows, therefore, that they have not alleged any injury by reason of such violation. CONCLUSION Because Plaintiffs’ complaint does not adequately allege predicate acts constituting “racketeering activity,” or allege that Defendants acquired or maintained any interest in or control of an enterprise through racketeering activity, or that Plaintiffs suffered injury as a result of Defendants’ acquiring or maintaining an interest in or control of an enterprise through racketeering activity, we AFFIRM the district court’s dismissal of Plaintiffs’ complaint for failure to state a claim upon which relief could be granted, Fed.R.Civ.P. 12(b)(6). We decline to remand this case to the district court to permit Plaintiffs to amend their complaint. It is clear from the voluminous Complaint and its 104 attached exhibits that Plaintiffs cannot state a claim that any of the Defendants violated § 1962(b) and that Plaintiffs suffered injuries as a result. Of. EEOC v. Ohio Edison Co., 7 F.Sd 541, 546 (6th Cir.1993) (quoting Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir.1991), for the proposition that “[w]here a more carefully drafted complaint might state a claim, a plaintiff must be given at least one chance to amend the complaint before the district court dismisses the action with prejudice”) (emphasis added). Indeed, it is clear that what Plaintiffs have sought to cast as RICO violations are in fact disputes over who was entitled to determine what “reasonable” means in the world of health care costs. The crux" }, { "docid": "22582604", "title": "", "text": "it formally ask the district court after judgment to permit such an amendment”)(emphasis in the original); see also Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir.2002)(“A district court is not required to grant a plaintiff leave to amend his complaint sua sponte when the plaintiff, who is represented by counsel, never filed a motion to amend nor requested leave to amend before the district court.”). In this case, Karvelas chose not to- file a motion to amend his complaint at any stage of the litigation. Instead, he stood upon his 93-page complaint, even after the defendants filed a 12(b)(6) motion to dismiss that focused on deficiencies in th.e pleadings. Indeed, the district court had already afforded Karvelas a generous opportunity to sharpen his pleadings when it did not dismiss with prejudice the plaintiffs first FCA retaliation complaint against the defendants. Under these circumstances, the district court did not err by failing sua sponte to provide Karvelas an opportunity to amend his complaint before dismissing the case with prejudice. III. Karvelas filed in the district court a 93-page complaint alleging that the defendants violated the False Claims Act and describing sixteen fraudulent “schemes” in which they allegedly participated. The complaint includes some detail about the nature of these schemes and about the defendants’ alleged failure to comply with patient care standards. However, in the 93 pages of this lengthy document, we find no allegation, pled with adequate specifici ty, of a false claim for payment that was actually presented to the government. See Clausen, 290 F.3d at 1312 (upholding dismissal of FCA qui tam complaint where “nowhere in the blur of facts and documents assembled by [the relator] regarding six alleged testing schemes [could] one find any allegation, stated with particularity, of a false claim actually being submitted to the Government”). The law is clear that the False Claims Act attaches liability to the submission of false claims for payment, not to the underlying fraudulent activity or other wrongful conduct on which those claims were based. See Rivera, 55 F.3d at 709. The district court correctly" }, { "docid": "18341821", "title": "", "text": "not even suggest that his complaint satisfies the requirements of Article III standing. Instead, he appears to say only that he should have been permitted to amend his complaint so as to allege that “the DNC in fact violated his equal protection rights.” DiMaio’s Br., at 16. But DiMaio did not need permission to amend the complaint. The Parties never filed any responsive pleading in the case, and as a result, DiMaio was free to amend the complaint once, without leave, under Federal Rule of Civil Procedure 15(a)(1). Moreover, we have held that “[a] district court is not required to grant a plaintiff leave to amend his complaint sua sponte when the plaintiff, who is represented by counsel, never filed a motion to amend nor requested leave to amend before the district court.” Wagner v. Daewoo Heavy Indus. America Corp., 314 F.3d 541, 542 (11th Cir.2002) (en banc). Here, DiMaio never moved to amend his complaint, nor did he seek leave to amend before the district court. Indeed, as we observed in United States ex rel. Atkins v. McInteer, 470 F.3d 1350, 1361 & n. 22 (11th Cir.2006), a plaintiff may seek to amend his complaint pursuant to Federal Rules of Civil Procedure 15(a)(2), 59(e), or 60(b)(6) — yet DiMaio has pursued none of these avenues. Nor has DiMaio indicated, even on appeal to this Court, what precisely his amended complaint would reveal. See McInteer, 470 F.3d at 1362 (a plaintiff “should not be allowed to amend [his] complaint without showing how the complaint could be amended to save the meritless claim”) (citation omitted). Not surprisingly, we are reluctant to speculate. And, indeed, if DiMaio were to file a new complaint, he might consider the issues presented in the cases of Democratic Party of U.S. v. Wisconsin ex rel. La Follette, 450 U.S. 107, 101 S.Ct. 1010, 67 L.Ed.2d 82 (1981), and Cousins v. Wigoda, 419 U.S. 477, 95 S.Ct. 541, 42 L.Ed.2d 595 (1975). Accordingly, we AFFIRM the dismissal of DiMaio’s complaint for lack of standing. However, this dismissal is necessarily without prejudice. See Boda v. United States, 698" }, { "docid": "22036056", "title": "", "text": "complaint. Under Bank, we would answer that question in the affirmative. 928 F.2d at 1112 (‘Where a more carefully drafted complaint might state a claim, a plaintiff must be given at least one chance to amend the complaint before the district court dismisses the action with prejudice.”). We, however, have determined that the Bank rule should no longer be followed. As a result, we overrule Bank and substitute the following rule: A district court is not required to grant a plaintiff leave to amend his complaint sua sponte when the plaintiff, who is represented by counsel, never filed a motion to amend nor requested leave to .amend before the district court. This new rule is more efficient and in line with the critically important concept of finality in our judicial system. Powers v. Boston Cooper Corp., 926 F.2d 109, 112 (1st Cir.1991) (“Finality is a critically important concept in our system of jurisprudence. At some point, battles must end” (internal quotation marks omitted).); see Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1276 (11th Cir.2000) (noting that interlocutory appeals “are generally disfavored” because “[pjiecemeal appellate review has a deleterious effect on judicial administration”). It also is in line with the general rule of this Circuit that issues not raised before the district court will not be considered on appeal. See Wright v. Hanna Steel Corp., 270 F.3d 1336, 1342 (11th Cir.2001). In addition, it satisfies the ap parent purpose of the Federal Rules of Civil Procedure, which is “to secure the just, speedy, and inexpensive determination of every action.” Fed.R.Civ.P. 1. Under the Bank rule, a plaintiff could sit idly by as he awaited the district court’s determination with respect to a Rule 12(b)(6) motion to dismiss; he need not seek leave to amend his complaint nor amend it as of right, because he would have “two bites at the apple” on appeal. See, e.g., Bank, 928 F.2d at 1113. As in this case, the plaintiff could appeal the adverse ruling of the district court as long as it was a final judgment. Briehler v. City of Miami, 926" }, { "docid": "3875858", "title": "", "text": "(B) omitted to state a material fact in order to make the statements made, in the light of the circumstances in which they were made, not misleading; the complaint shall specify each statement alleged to have been misleading, the reason or reasons why -the statement is misleading, and, if an allegation regarding the statement or omission is made on information and belief, the complaint shall state with particularity all facts on which that belief is formed. .In their Motion to Dismiss, Defendants seek dismissal with prejudice, yet they do not cite any case law allowing for such a result. During oral argument, Defendants conceded that in the Eleventh Circuit, when dismissing a first complaint, the standard is to dismiss without prejudice in order to give a plaintiff the chance to amend the complaint to state a claim. Transcript at 6. They continued, however, that the Complaint cannot be remedied to state a claim, and thus dismissal with prejudice is appropriate. Id. Eleventh Circuit case law regarding when a district court should dismiss a complaint with prejudice has recently changed. Under the old rule, district courts were required to dismiss complaints without prejudice when it appeared that a more carefully drafted complaint might state a claim upon which relief could be granted. Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir.1991), overruled by Wagner v. Daewoo Heavy Indus. America Corp., 314 F.3d 541, 542 (11th Cir.2002). This rule applied even where the plaintiff never sought leave to amend. Id. Under the new rule, however, “[a] district court is not required to grant a plaintiff leave to amend his complaint sua sponte when the plaintiff, who is represented by counsel, never filed a motion to amend nor requested leave to amend before the district court.” Wagner v. Daewoo Heavy Indus. America Corp., 314 F.3d 541, 542 (11th Cir.2002). Plaintiffs have not requested leave to amend the Consolidated Amended Complaint. Accordingly, I am not required to dismiss the Complaint without prejudice. I will do so, however, and give Plaintiffs the opportunity to amend their Complaint in accordance with this Order. . In Sunbeam," }, { "docid": "3875859", "title": "", "text": "prejudice has recently changed. Under the old rule, district courts were required to dismiss complaints without prejudice when it appeared that a more carefully drafted complaint might state a claim upon which relief could be granted. Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir.1991), overruled by Wagner v. Daewoo Heavy Indus. America Corp., 314 F.3d 541, 542 (11th Cir.2002). This rule applied even where the plaintiff never sought leave to amend. Id. Under the new rule, however, “[a] district court is not required to grant a plaintiff leave to amend his complaint sua sponte when the plaintiff, who is represented by counsel, never filed a motion to amend nor requested leave to amend before the district court.” Wagner v. Daewoo Heavy Indus. America Corp., 314 F.3d 541, 542 (11th Cir.2002). Plaintiffs have not requested leave to amend the Consolidated Amended Complaint. Accordingly, I am not required to dismiss the Complaint without prejudice. I will do so, however, and give Plaintiffs the opportunity to amend their Complaint in accordance with this Order. . In Sunbeam, the district court explained, \"Under the group pleading doctrine, allegations of securities fraud based upon statements in group published information are presumed to be the collective action of corporate officers involved in the day-to-day management of the corporation.” 89 F.Supp.2d at 1340. . While Plaintiffs attribute all of the allegedly false or misleading statements during the Class Period to all the Defendants, the Complaint fails to allege any particularized facts which connect Messrs. Kessinger, Miller or Rauner, the Company's outside directors, to these misstatements. Instead, Plaintiffs attempt to rely on the \"group pleading doctrine.” Complaint ¶23. This, however, is not sufficient to establish scienter. .See, e.g., In re Smith Gardner Sec. Litig., 214 F.Supp.2d 1291, 1302 (S.D.Fla.2002) (stating that allegations of insider trading were not suspicious in timing and therefore not probative of scienter); Cheney, 2000 WL 1140306. In Cheney, this Court denied a motion to dismiss a securities class action against two defendants and granted the motion as to the remaining defendants. Id. Plaintiffs alleged that each time one of the individual defendants had" }, { "docid": "23042292", "title": "", "text": "amended complaint have failed to comply with Rule 9(b). C. The District Court Abused Its Discretion in Dismissing Relator’s Amended Complaint with Prejudice. Relator alternatively challenges the district court’s decision to dismiss his amended complaint with prejudice instead of affording him an opportunity to comply with Rule 9(b) by amending his amended complaint. We review a district court’s decision to dismiss a complaint with prejudice for an abuse of discretion. Shepherd v. Wellman, 313 F.3d 963, 971 (6th Cir.2002) (citing Grover v. Eli Lilly & Co., 33 F.3d 716, 718 (6th Cir.1994)). We agree with Relator that dismissing his amended complaint with prejudice was improper. In EEOC v. Ohio Edison Co., 7 F.3d 541, 546 (6th Cir.1993), we held that “where a more carefully drafted complaint might state a claim, a plaintiff must be given at least one chance to amend the complaint before the district court dismisses the action with prejudice.” (quoting Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir.1991)); see also Coffey, 2 F.3d at 162 (observing that “ ‘federal courts must be liberal in allowing parties to amend their complaints’ ”) (quoting Hayduk v. Lanna, 775 F.2d 441, 445 (1st Cir.1985)). “Denial may be appropriate, however, where there is ‘undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc.’ ” Morse v. McWhorter, 290 F.3d 795, 800 (6th Cir.2002) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). The relevant issues in our inquiry are (1) whether Relator had sufficient notice that his amended complaint was deficient, and (2) if so, whether Relator had an adequate opportunity to cure the deficiencies. In this case, the district court declined to grant Relator an opportunity to amend the complaint, reasoning that “[g]iven the Relator’s alleged first hand knowledge of these events and the pendency of this action for more than two years, Relator has had ample opportunity to cure the cited factual" }, { "docid": "8330982", "title": "", "text": "123 S.Ct. 518, 154 L.Ed.2d 466 (2002) (internal citations and quotations omitted). . In support of its position, Pfizer cites to the Court's language from its previous Order. See Moore, 840 F.Supp.2d at 1352 n. 14. However, there the Court held that a failure to withdraw claim was barred against Mylan, the generic manufacturer, not Pfizer, based on Mensing. Mensing did not address claims brought against a brand name drug manufacturer like Pfizer. . Plaintiff alleges that the phenytoin the decedent received from Trinity Hospital was manufactured by Pfizer, or, in the alternative, by Mylan. It is proper for plaintiff to plead alternative claims in her amended complaint until she learns by discovery which defendant manufactured the phenytoin ingested by the decedent. See Fed.R.Civ.P. 8(d)(2). . The Court does not have sufficient information, such as the chemical makeup of the alternatives, affidavits, or expert testimony, to determine whether the alternatives listed by plaintiff are in fact completely different products as Pfizer asserts. . The injuries listed by plaintiff in the amended complaint contain the same language — “including but not limited to” — as the original complaint, which the Court criticized in dismissing plaintiff’s negligence claims. Moore, 840 F.Supp.2d at 1352. However, plaintiff has now pled factual information in the amended complaint about what product the decedent was prescribed and when, sufficient to allege a causal connection between the decedent’s taking of phenytoin and his injuries and sufficient to apprise Pfizer of plaintiffs claim. . Plaintiff has once again requested leave to amend her complaint if the Court finds that dismissal of any of her claims is appropriate. The Court has already given plaintiff a chance to amend her complaint and will not grant her perpetual bites at the apple. See Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir.1991) (overruled in part by Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir.2002)o (en banc)) (\"Where a more carefully drafted complaint might state a claim, a. plaintiff must be given, at least one chance to amend the complaint before the district court dismisses the action with" }, { "docid": "23042291", "title": "", "text": "incidents of improper billing Relator supposedly witnessed first-hand. Additionally, the amended complaint did not specify the names of any individuals involved in the improper billing, save for Dr. Adams, who was allegedly terminated in retaliation for refusing to engage in the fraudulent billing practices. Indeed, the amended complaint often states that “Defendants” engaged in certain practices, without ever specifying the defendants to which it was referring. A complaint “may not rely upon blanket references to acts or omissions by all of the ‘defendants,’ for each defendant named in the complaint is entitled to be apprised of the circumstances surrounding the fraudulent conduct with which he individually stands charged.” Benoay v. Decker, 517 F.Supp. 490, 493 (E.D.Mich.1981) (internal quotation marks and citations omitted), aff'd, 735 F.2d 1363 (6th Cir.1984); see also Yuhasz, 341 F.3d at 564 (holding that the complaint at issue did not comply with Rule 9(b) inasmuch as it failed to “identify specific parties, contracts, or fraudulent acts”). Based on all these deficiencies, we agree with the district court that the allegations in Relator’s amended complaint have failed to comply with Rule 9(b). C. The District Court Abused Its Discretion in Dismissing Relator’s Amended Complaint with Prejudice. Relator alternatively challenges the district court’s decision to dismiss his amended complaint with prejudice instead of affording him an opportunity to comply with Rule 9(b) by amending his amended complaint. We review a district court’s decision to dismiss a complaint with prejudice for an abuse of discretion. Shepherd v. Wellman, 313 F.3d 963, 971 (6th Cir.2002) (citing Grover v. Eli Lilly & Co., 33 F.3d 716, 718 (6th Cir.1994)). We agree with Relator that dismissing his amended complaint with prejudice was improper. In EEOC v. Ohio Edison Co., 7 F.3d 541, 546 (6th Cir.1993), we held that “where a more carefully drafted complaint might state a claim, a plaintiff must be given at least one chance to amend the complaint before the district court dismisses the action with prejudice.” (quoting Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir.1991)); see also Coffey, 2 F.3d at 162 (observing that “ ‘federal courts must" } ]

[ { "docid": "1339320", "title": "", "text": "the company and the insured as fixing definitely the date upon which premiums are to be paid and with respect to which rights under the policy are to be calculated; and it is of the greatest importance to both that this date be not left open to any doubt or conjecture. Consequently, we do not think it could possibly have been intended that “the date of its issuance,” as used in the application, should have reference to the day of the actual delivery of the policy to the insured. Such interpretation would leave the effective date of the policy, with respect to which the due date of future premiums and other rights under the policy must be calculated, to be shown by parol in contradiction of the date borne by the policy itself or would necessarily contemplate allowing the local agent to make a change in the date borne by the policy, an instrument which by its express terms he is forbidden to change or alter in any way. It is not reasonable to ascribe to the language used by the parties a meaning which would introduce into their contract so great an element of doubt and confusion. The reasonable assumption is that they used the words “date of its issuance” in the sense of their ordinary meaning and had reference to the date borne by the policy, the date on which it was sent out from the home office of the company. In Mutual Life Ins. Co. of New York v. Hurni Packing Co., 263 U. S. 167, 44 S. Ct. 90, 68 L. Ed. 235, 31 A. L. R. 102, the question was whether a policy had become incontestable under a clause which provided for inéontestability except for nonpayment of premiums,' provided two years should have elapsed “from its date of issue.” Death occurred moré than two years after the date upon the face of the policy but within two years of its actual delivery. The court held that “the date of issue” was the date borne upon the face of the policy and that consequently it had" } ]

[ { "docid": "10437297", "title": "", "text": "court says: “ ‘If the contention of defendant is sound, then MacDonald, for the payment of the six months’ premium, received insurance for only four months and eighteen days. Likewise, if the contention of defendant is sound, the payment of the premium five months after the expiration of the original term would have given MacDonald insurance for one month only, and the payment of the premium six months after the expiration of the original term would have given him no insurance at all. * * * ’ “Where, as here, it is optional with the company whether or not to reinstate an expired policy, the act of so doing constitutes a new contract and starts a new period of coverage. * * * ” “A construction which gives insured insurance for less period of time than that covered by the premium which he has’ paid should not be adopted.” 32 Corpus Juris 1165. No extra charge was made for issuing the policy of insurance. The contract is unlike the insurance contract in the cases of Lanier v. New York Life Ins. Co. and Ætna Life Ins. Co. v. Dunken, supra. Moreover, the promise of additional insurance had already been lost to insured by failure to pay the quarterly premium when due, (See 3 under Standard Provisions of policy) and the company could cancel the policy at the end of any quarter. The reinstatement being dated back gave absolutely nothing for the uninsured days. A contract of insurance will, if possible, be so construed as to protect the insured, and doubts, if any, will be resolved in his favor. Mutual Life Ins. Co. v. Hurni Packing Co., 263 U.S. 167, 44 S.Ct. 90, 68 L.Ed. 235, 31 A.L.R. 102; McMaster v. New York Life Ins. Co., 183 U.S. 25, 22 S.Ct. 10, 46 L.Ed. 64. Winer v. New York Life Ins. Co., cited by the majority does not touch the question here. It will be found, I think, by a careful reading of the Prescott case and the cases cited therein approvingly, that my colleagues have failed to follow the last" }, { "docid": "22681480", "title": "", "text": "does not rest upon the existence of the disability; but it. is the receipt by the company oi proof of the disability which is definitely made a condition precedent to an assumption by it of payment of the premiums becoming due after the receipt of such proof. The provision to that effect is wholly free from the ambiguity which the court thought existed in the Marshall policy. Compare Brams v. New York Life Ins. Co., 299 Pa. 11, 14; 148 Atl. 855. It is true that where the terms of a policy are of doubtful meaning, that construction most favorable to the insured will be adopted. Mutual Life Ins. Co. v. Hurni Co., 263 U. S. 167, 174; Stipcich v. Insurance Co., 277 U. S. 311, 322. This canon of construction is both reasonable and just, since the words of the policy áre chosen by the insurance company; but it furnishes no warrant for avoiding hard consequences by importing into a contract an ambiguity which otherwise would not exist, or, under the guise of construction, by forcing from plain words unusual and unnatural meanings. .Contracts of insurance, like other contracts, must be construed according to . the terms which the parties have used, to be taken and understood, in the absence of ambiguity, in their plain, ordinary and popular sense. Imperial Fire Ins. Co. v. Coos County, 151 U. S. 452, 462-463. As long ago pointed out by this court, the condition in a policy of life insurance that the policy shall cease if the stipulated premium shall not be paid on or before the day fixed is of the very essence and substance of the contract, against which even a court of equity cannot grant relief. Klein v. Insurance Co., 104 U. S. 88, 91; New York Life Ins. Co. v. Statham, 93 U. S. 24, 30-31 ; Pilot Life Ins. Co. v. Owen, 31 F. (2d) 862, 866. And to. discharge the' insured from the legal consequences of a failure to comply with an explicitly stipulated requirement of the policy, constituting a condition precedent to the granting of" }, { "docid": "13483274", "title": "", "text": "the parties in the policy, and were therefore binding upon them. New York Life Ins. Co. v. Silverstein (C. C. A. 8) 53 F.(2d) 986, 989; Sellars v. Continental Life Ins. Co. (C. C. A. 4) 30 F.(2d) 42, 44-45; McCampbell v. New York Life Ins. Co. (C. C. A. 5) 288 F. 465, 468, 469; McConnell v. Provident Savings Life Assur. Soc. of New York (C. C. A. 6) 92 F. 769, 771-772; Whitney v. Union Central Life Ins. Co. (C. C. A. 8) 47 F.(2d) 861, 864-866. Under the terms of the policy, reinstatement restored the old policy and did not create a new one. Business Men’s Assurance Co. of America v. Scott (C. C. A. 8) 17 F.(2d) 4, 6, 7; Travelers’ Ins. Co. v. Ziegler (Tex. Civ. App.) 250 S. W. 1115, 1116, 1117. See, also, New York Life Ins. Co. v. Statham et al., 93 U. S. 24, 31-33, 23 L. Ed. 789. Any other rule as applied to level premium life insurance would be legally unsound and aetuarially absurd. It would disturb the basis for all calculations as to premiums and benefits, and give to those insured who defaulted and subsequently reinstated, a distinct advantage over those who paid their premiums as they fell due. The purpose of the antidiscrimination statute is to secure to the purchasers of life insurance, of the same age and condition of health, equality of treatment with respect to premiums and coverage, to prevent rebates being given and favoritism being shown, and, generally, to secure to those who buy insurance the coverage which the premiums actually paid entitle them to receive. Such statutes are not intended to prohibit the companies from writing policies which contain inducements to all polieyholders alike to refrain from borrowing upon their policies, or which make some uniform distinction otherwise lawful between those who borrow and those who do not. The result of the trial was due to what we must now regard as an erroneous construction of section 5741 by the Courts of Appeals of Missouri. The appellant was not at fault in failing" }, { "docid": "14402462", "title": "", "text": "the amount was directed to be paid. This precise question was decided adversely to the government in Standard Oil Co. of California v. Davis (D. C.) 6. F. (2d) 236, where it was held that the.time in which an action like this must be brought is computable from the time the money is to be paid, and not from the date of the order. Since this decision is the only reported decision dealing with the statute of limitations, I am unable to comprehend sufficient reason for not following it. The government asserts the decision is based on fallacious premise, but to ine it is logical and cogently persuasive. Judge Partridge, in the above case, said: “It is, of course, fundamental in all the law pertaining to statutes of limitations, that they are to be computed from the time when the party could have brought his suit. Indeed, even after the time has commenced to run, it may be suspended — -‘tolled’—by disability to sue. Clearly, under the act, here, the plaintiff could not have brought its suit until after the ‘effective date’ of the order. Moreover, it might readily happen that for one reason or other the Commission would postpone the payment until a year after its order. It is thus seen that the construction contended for by plaintiff is more reasonable, and at the same time in consonance with settled prieiples relating to statutes of limitations. But it cannot be said that ‘the date of the order,’ under a strict construction, necessarily means the date of its promulgation. The language is equally susceptible of the meaning ‘date fixed by the order.’ That this is the reasonable and time-honored interpretation is made clear by the language of the Supreme Court in Mutual Life Insurance Co. [of New York] v. Hurni Packing Co., 263 U. S. 167, 44 S. Ct. 90, 68 L. Ed. 235 [31 A. L. R. 102]. * * * I accept this interpretation and construction of the statute. It is inconceivable to me that Congress intended that the time to bring an action should run, or begin" }, { "docid": "13371500", "title": "", "text": "had been the intention of the company that the right to contest liability for double indemnity or disability benefits should not be affected by the incontestability clause, it would have been easy enough to use language making that intention clear, as by simply wording the second exception to the incontestability clause to read: “Except as to liability for double indemnity or disability benefits.” If there were any ambiguity in the language used, it is well settled that it should be resolved in favor of the insured. Mutual Life Ins. Co. v. Hurni Packing Co., 263 U. S. 167, 174, 44 S. Ct. 90, 68 L. Ed. 235, 31 A. L. R. 102; Imperial Fire Ins. Co. v. Coos County, 151 U. S. 452, 462, 14 S. Ct. 379, 38 L. Ed. 231; Thompson v. Phenix Ins. Co., 136 U. S. 287, 297, 10 S. Ct. 1019, 34 L. Ed. 408. But there is no ambiguity. The incontestability clause was directed at defenses which might be asserted to the policy. The exception which we are considering was clearly intended to except certain defenses from the operation of that clause; and, equally clearly, the defenses so excepted were those enumerated in the sections to which specific reference was made, i. e., sections 1 and 3. These sections provide the restrictions and provisions under which the promise with respect to double indemnity and disability made in the face of the policy are to be enjoyed. And the second exception in the incontestability clause preserves defenses arising out of these restrictions and provisions against the general effect of the clause. It is to be noted that the exception is, not as to the double indemnity and disability benefits, but as to “restrictions and provisions applying to the double indemnity and disability benefits.” We have carefully considered the eases relied on by the company, Kaffanges v. New York Life Ins. Co. (C. C. A. 1st) 59 F.(2d) 475; New York Life Ins. Co. v. Bullock (D. C.) 59 F.(2d) 747; Penn Mutual Life Ins. Co. v. Hartle, 165 Md. 120, 166 A. 614, 615; Greber" }, { "docid": "4135281", "title": "", "text": "CHASE, Circuit Judge (after stating the facts as above). Representations made by an applicant for insurance to the effect that within a specified period previous to the date of the application the applicant had not consulted a physician concerning his health are material, and, when false, amount to a fraud on the insurer who has relied upon them in issuing a policy of insurance that will render the insurance void. Mutual Life Ins. Co. of New York v. Hurni Packing Co. (C. C. A.) 260 F. 641 (see, also [C. C. A.] 280 P. 18, where this case was decided on another ground); Jenkins v. United States (D. C.) 24 F.(2d) 452; Mutual Life Ins. Co. v. Hilton-Green et al., 241 U. S. 613, 36 S. Ct. 676, 60 L. Ed. 1202; Ætna Life Ins. Co. v. Moore, 231 U. S. 543, 34 S. Ct. 186, 58 L. Ed. 356. The fact that the government had a report by a physician who examined and passed this applicant in no way tends to indicate that it did not rely upon this answer or that it knew the answer was false. The answer was made to be relied upon and was relied upon. Since it was willfully false, the intention to deceive follows as a matter of law. Claflin v. Insurance Co., 110 U. S. 81, 3 S. Ct. 507, 28 L. Ed. 76. It is urged that the fraud, if any, only entered into the reinstatement of the policy, and had no effect upon the converted policy. We agree that the reinstatement of a policy for insurance is something different from the conversion of the insurance, but it is too plain for discussion that there had to be a reinstated policy before it could be converted, and, since the reinstatement of the policy must be held void because of a fraudulent application, there was no valid policy to convert. The provision in the policy that it should be incontestable from the date it took effect, except for nonpayment of premiums, must be read in connection with the provisions of the statute" }, { "docid": "13501790", "title": "", "text": "clearly and plainly done so, and we think the insured is correct in his contention. The Supreme Court of the State of Maine has not as yet passed directly upon this question and this court will exercise an independent judgment in determining the law with respect to the issues here presented, based upon whatever principles of state law are applicable. Rosenthal v. New York Life Ins. Co., supra; New York Life Ins. Co. v. Jackson, 304 U.S. 261, 262, 58 S.Ct. 871, 82 L.Ed. 1329; Burns Mortgage Co. v. Fried, 292 U.S. 487, 496, 54 S. Ct. 813, 78 L.Ed. 1380; Burgess v. Seligman, 107 U.S. 20, 2 S.Ct. 10, 27 L.Ed. 359; New York Life Ins. Co. v. Jackson et al., 7 Cir., 98 F.2d 950. It is the law of Maine, as it is generally, that if the language of an insurance policy is ambiguous, or susceptible of interpretations different in import, construction should be most strongly against the insurer, on whom the obligation of contract rests, and who is supposed to have chosen the wording. “No rule * * * is more fully established, or more imperative and controlling * * Barnes v. Dirigo Mutual Fire Ins. Co., 122 Me. 486, 120 A. 675, 676; Dunning v. Massachusetts Mut. Acc. Ass’n, 99 Me. 390, 59 A. 535; Young v. Travelers’ Ins. Co., 80 Me. 244, 13 A. 896; Abbott v. Hampden Ins. Co., 30 Me. 414. As the court said in Mutual Life Insurance Company of New York v. Hurni Packing Company, 263 U.S. 167, 174, 44 S. Ct. 90, 91, 68 L.Ed. 235, 31 A.L.R. 102: “The rule is settled that in case of ambiguity that construction of the policy will be adopted which is most favorable to the insured. The language employed is that of the company and it is consistent with both reason and justice that any fair doubt as to the meaning of its own words should be resolved against it.” Stroehmann et al. v. Mutual Life Insurance Company of New York, 300 U.S. 435, 57 S.Ct. 607, 81 L.Ed. 732. Webster’s New" }, { "docid": "12726013", "title": "", "text": "The sole purpose of all contract construction is to ascertain the intention of the parties to the contract. The rule that insurance contracts are to be construed against the insurer is purely a rule of construction which comes into play as an aid to construction only when, after using all other effort to ascertain the intention of the parties, the contract is yet ambiguous as to which of two things was intended— one favorable to the insurer and the other to the insured. It is not at all a rule to be used in seeking a meaning favorable to the insured. It is the last straw moving the scale which has been left uncertain by an ambiguity.' Some question may be made as to the applicability of this rule here. It is an old rule of contract construction that language must, if ambiguous, be construed against him who uses it because it is a natural inference that the user would make plain whát is in his favor. It is really an application of this general rule to contracts of insurance which has given rise to the statements thereof as to insurance contracts. The reason for the rule is that insurance contracts are nearly always carefully prepared by the insurers and the language therein is their careful selection. Aschenbrenner v. U. S. Fidelity & G. Co., 292 U. S. 80, 84, 54 S. Ct. 590, 78 L. Ed. 1137; Stipcich v. Metropolitan Life Ins. Co., 277 U. S. 311, 322, 48 S. Ct. 512, 72 L. Ed. 895; Mutual Life Ins. Co. v. Hurni Packing Co., 263 U. S. 167, 174, 44 S. Ct. 90, 68 L. Ed. 235, 31 A. L. R. 102; Liverpool & L. & G. Ins. Co. v. Kearney, 180 U. S. 132, 136, 21 S. Ct. 326, 45 L. Ed. 460; American Surety Co. v. Pauly, 170 U. S. 133, 144, 18 S. Ct. 552, 42 L. Ed. 977; Northwestern N. L. I. Co. v. Banning, 63 F.(2d) 736, 737 (C. C. A. 8); Queen Ins. Co. v. Meyer Milling Co., 43 F.(2d) 885, 887 (C." }, { "docid": "6909907", "title": "", "text": "the date to which premiums were paid as provided in the policy was the enfi of the policy year from which the insurance became effective. The ease of Mutual Life Ins. Co. v. Hurni Packing Co., 263 U. S. 167, 44 S. Ct. 90, 68 L. Ed. 235, 31 A. L. R. 102, cited in appellee’s brief, is conclusive of this point. In that ease the court held that it was competent for the parties to agree that the effective date of the policy should he one prior to its actual execution and that that was what they did. A special provision of the application provided that tho applicant by request might have the policy antodated for a period not to exceed six months. This provided for his insurance at the age of forty-seven. Under this agreement the policy was issued as of August 23 and tho insurance became effective from its date of issue, although it was not actually applied for until September 2 and not executed and delivered until September 7. The court held, in effect, that, although not delivered until a later date, the policy went into effect on the date agreed to by the parties as tho effective date and not upon the later date upon which it was actually delivered. To the effect that an annual premium is intended to pay for one full year’s insurance, see Davis v. Home Ins. Co., supra, and cases therein cited. The case of McMaster v. New York Life Ins. Co., 183 U. S. 25, 22 S. Ct. 10, 16, 46 L. Ed. 64, is clearly in point and is controlling. In that case the applications, which were part of the policies, were dated December 12. The annual premium was fixed at $21, under the provision that on its payment and not before, the policies were to go into effect. The policies were issued on December 18, but not actually paid for until December 26, at which time the policies were delivered. While thei’e is involved a question of fraud on the part of the agent by having inserted" }, { "docid": "6028796", "title": "", "text": "inquiry it was intended to ask the applicant whether his application for an accident and health policy had ever been rejected by a life company. “The rule is settled that in ease of ambiguity that construction of the policy will be adopted which is most favorable to the insured.” Mutual Life Ins. Co. v. Hurni Packing Co., 263 U. S. 167, 44 S. Ct. 90, 68 L. Ed. 235, 31 A. L. R. 102. In the absence of fraud, the applicant’s failure to disclose facts about which no questions are asked will not avoid a poliey. 32 C. J. p. 1272. We do not believe the proposition that rejection of an applicant for a life policy is material as matter of law to the assumption of the risk in an accident and health policy, is sustainable. The risks are substantially different, and the facts which cause a rejection of the former may or may not increase the risk of the latter; and so it becomes a question of fact and not one of law. As said in Missouri State Life Ins. Co. v. Pater (C. C. A.) 15 F.(2d) 737, epileptic attacks strongly predispose to accidents. That fact increases the risk in both classes, — life and accident, — likewise as to many other ailments and infirmities; but many others do not. The Sixth Circuit, in Columbian Nat. Life Co. v. Harrison, 12 F.(2d) 986, was in doubt where the false answer was in an application for a life policy and the later, application was for an accident poliey only; but ruled it was material as matter of law where the later application was for an accident and health poliey, on the ground that the two liability covenants were not separable, being purchased by an unappórtionable consideration, and life risks and health risks being of like character. The two questions there propounded in a prior application for a life policy, both falsely answered in the negative, were: Had application ever been made for accident or life insurance and declined or rejected? and (second) cancelled or renewal refused or rejected? The" }, { "docid": "1375197", "title": "", "text": "a warranty or a representation, are equally misrepresentations, and are placed in each case upon the same footing by the statute which applies to them if the statements are called ‘warranties’ by the parties no less than if they are mere ‘representations.’ * * * ” In the case of Mutual Benefit Life Insurance Co. v. Robinson (C. C.) 54 F. 580, it is held that where an application for insurance is made in one state, by a resident and citizen thereof, to agents located therein, to an insurance company of another state, the policy, though, actually issued in such other state to take effect by its terms upon payment of first premium, and the policy is delivered and premium paid in the state where the application is made, the law of the state governs the interpretation and force of the contract. Busher v. New York Life Ins. Co., 72 N. H. 551, 58 A. 41. This appears to be a comprehensive statement applicable to insurance contracts. The contract in the case at law is governed by the laws of Massachusetts. Pritchard v. Norton, 106 U. S. 124, 1 S. Ct. 102, 27 L. Ed. 104; Albro v. Manhattan Life Ins. Co. (C. C.) 119 F. 629; Provident Savings Life Assur. Soc. v. Hadley (C. C. A.) 102 F. 856. The first assignment of errors relates to the admissibility of the application for the policy. The plaintiff claims that the application, not having been incorporated in the policy, etc., like all other collateral agreements prior to the execution of a written contract, becomes irrelevant and ineffective being deemed merged therein. There are several reasons why this contention cannot be sustained. The first is that positive fraud vitiates all contracts, obligations, deeds of conveyance, and even records and judgments of courts. It is always admissible to show that a written contract was induced by fraud. Jones v. Emery, 40 N. H. 348. The second reason is found in the language of the Massachusetts statute which provides that no oral or written misrepresentation or warranty made in the negotiation of a policy" }, { "docid": "15556857", "title": "", "text": "double indemnity; while that advanced on behalf of the insured is that the phrase should be construed to read “except as to the conditions of the provisions relating to disability and double indemnity,” and when so read it is said the clause does not permit a contest, after one year from the date of the policy, of the liability of the insurer to pay disability benefits, if they are otherwise pay-aide on the conditions specified in the policy; or, in other words, the only permissible contests are limited to a determination whether the conditions have been met. There is no uncertainty as to the rule of construction which must here govern. The subject matter is one of general law to which the federal courts are authorized to apply their own rules of decision, and indeed must do so in this case, there being no pertinent statute or decision in West Virginia, in which State the insured resided and the case was tried. It does not clearly appear from the record in what State the contract was made. The policy was executed and the proceeds made payable in New York but it is perhaps inferable that it was delivered and became effective in West Virginia as the application for the policy was dated at Parkersburg. Mutual Life Ins. Co. v. Johnson, 293 U.S. 335, 55 S.Ct. 154, 79 L.Ed. 398; Northwestern Mut. Life Ins. Co. v. Johnson, 254 U.S. 96, 41 S.Ct. 47, 65 L.Ed. 155. The well established federal rule as to the construction of insurance policies generally, applicable as well to the incontestable clause of life policies, is that where the language and meaning is clear and unambiguous it is to be understood in its plain, ordinary and popular sense; but in case of ambiguity, that construction is to be adopted which is most favorable to the insured. Imperial Fire Ins. Co. v. Coos County, 151 U.S. 452, 463, 14 S.Ct. 379, 38 L.Ed. 231; Mutual Life Ins. Co. v. Hurni Packing Co., 263 U.S. 167, 174, 44 S.Ct. 90, 68 L.Ed. 235, 31 A.L.R. 102; American Life Ins." }, { "docid": "6028795", "title": "", "text": "do so, — that some companies that issue life policies also issue accident and health policies. Nor were many other kinds of policies excluded, — fire, burglary, etc. Was the applicant bound to answer as to all of these? The question did not direct the applicant’s attention to his request, if any, for insurance on his life, except as-that might be included in an accident policy, as was done in Ætna Life Ins. Co. v. Moore, 231 U. S. 543, 34 S. Ct 186, 58 L. Ed. 356, and Prudential Ins. Co. v. Moore, 231 U. S. 560, 34 S. Ct. 191, 58 L. Ed. 367. On the whole facts of the case it cannot be maintained that any one, in making up the application, was guilty of trickery or deception. There was certainly no purpose to mislead or conceal on the part of Campbell or the agent. The question was propounded by defendant, and to say the least it is ambiguous in the respect now under consideration. The answer was true if by the inquiry it was intended to ask the applicant whether his application for an accident and health policy had ever been rejected by a life company. “The rule is settled that in ease of ambiguity that construction of the policy will be adopted which is most favorable to the insured.” Mutual Life Ins. Co. v. Hurni Packing Co., 263 U. S. 167, 44 S. Ct. 90, 68 L. Ed. 235, 31 A. L. R. 102. In the absence of fraud, the applicant’s failure to disclose facts about which no questions are asked will not avoid a poliey. 32 C. J. p. 1272. We do not believe the proposition that rejection of an applicant for a life policy is material as matter of law to the assumption of the risk in an accident and health policy, is sustainable. The risks are substantially different, and the facts which cause a rejection of the former may or may not increase the risk of the latter; and so it becomes a question of fact and not one of law. As" }, { "docid": "11845929", "title": "", "text": "rather the claim of nonliability, must be made within the one-year period, otherwise it cannot be pleaded as a defense, or is it a good defense if the suicide occurred within the one year period, although pleaded later? Counsel for plaintiff rely on Mutual Life Ins. Co. v. Hurni Packing Co., 280 F. 18, decided by the Circuit Court of Appeals for this circuit and affirmed in 263 U. S. 167, 44 S. Ct. 90, 68 L. Ed. 235, 31 A. L. R. 102, and other authorities to the same effect, which it is unnecessary to cite, for, if that case applies, the plaintiff’s contention must be sustained. On behalf of defendants it is claimed that these authorities are inapplicable, as in none of these cases was a suicide condition in issue, but only fraud or false representations in the application for the poliey. The reason for sustaining such a limitation when the poliey was issued on false representations or fraud in the application has been aptly stated in Missouri State Life Insurance Co. v. Cranford, 161 Ark. 602, 606, 257 S. W. 66, 67 (31 A. L. R. 93): “The modem rule is that a life insurance poliey containing a provision that it shall be incontestable after a specified time cannot be contested by the insurer on any ground not excepted in that .provision. It is said that the practical and intended effeet of such a stipulation is to create a short statute of limitations. By the stipulation, the insurance company agreed that it would take a year to investigate and determine whether it would contest the policies of insurance, and that, if it failed within that time to discover any grounds for contesting the same, it would make no further investigation and would not thereafter contest the validity of the policies.” How can the insurer investigate whether the insured will commit suicide? He may take his life within a day or two prior to the expiration of the period of limitation, or the beneficiary may not advise the insurer of the death of the assured until after the" }, { "docid": "15656356", "title": "", "text": "endeavor by the Congress and the courts to bring about a correspondence between the legal concept of ownership and the economic realities of enjoyment or fruition.” And again at page 679 of 289 U. S., 53 S. Ct. 761, 764, the court said: “One who takes out a policy on his own life, after application in his own name accepted by the company, becomes in so doing a party to a contract, though the benefits of the insurance are to accrue to some one else. Mutual Life Ins. Co. v. Hurni Packing Co., 263 U. S. 167, 177, 44 S. Ct. 90, 68 L. Ed. 235, 31 A. L. R. 102; Vance on Insurance, pp. 90, 91, and 108. The rights and interests thereby generated do not inhere solely in those who are to receive the proceeds. They inhere also in the insured who in co-operation with the insurer has brought the contract into being.” The case of Lewellyn v. Frick, 268 U. S. 238, 45 S. Ct. 487, 69 L. Ed. 934, cited by plaintiffs, is not in point here. That case held merely that section 402 (f) of the Revenue Act of 1918 was not retroactive and that the statute referred only to transactions taking place after its passage, and that the latter provision in the Revenue Act of 1924 making an equivalent provision applicable to transactions which took place prior to the enactment of the act was an aid to the conclusion that the provision in the earlier act was not intended to be retroactive. It appears that the insurance policy involved in the Frick Case reserved certain powers and options to the insured to change the policy, but the effect of these reserved powers was not considered by the court until the decision in Chase National Bank v. United States, supra. In the last-mentioned case the court was dealing with policies of insurance in which the insured reserved the power to change the beneficiary, and it was held that termination at death of the power of the decedent to change beneficiaries, with the consequent passing to" }, { "docid": "12726014", "title": "", "text": "rule to contracts of insurance which has given rise to the statements thereof as to insurance contracts. The reason for the rule is that insurance contracts are nearly always carefully prepared by the insurers and the language therein is their careful selection. Aschenbrenner v. U. S. Fidelity & G. Co., 292 U. S. 80, 84, 54 S. Ct. 590, 78 L. Ed. 1137; Stipcich v. Metropolitan Life Ins. Co., 277 U. S. 311, 322, 48 S. Ct. 512, 72 L. Ed. 895; Mutual Life Ins. Co. v. Hurni Packing Co., 263 U. S. 167, 174, 44 S. Ct. 90, 68 L. Ed. 235, 31 A. L. R. 102; Liverpool & L. & G. Ins. Co. v. Kearney, 180 U. S. 132, 136, 21 S. Ct. 326, 45 L. Ed. 460; American Surety Co. v. Pauly, 170 U. S. 133, 144, 18 S. Ct. 552, 42 L. Ed. 977; Northwestern N. L. I. Co. v. Banning, 63 F.(2d) 736, 737 (C. C. A. 8); Queen Ins. Co. v. Meyer Milling Co., 43 F.(2d) 885, 887 (C. C. A. 8). Usually, where the reason for a rule is absent, the rule has no right to be present. Here this bond was not drawn by the companies but by the Insurance Commissioner, who certainly was not representing the companies in so doing. But putting aside the doubt as to any applicability of the rule, we must first ascertain if an ambiguity exists which would justify use of the rule. The first move in construing a contract is to seek the intended meaning from the words used in the contract. So doing, we find (as bearing on the matter before us) the following: The bond is entitled “Guaranty and Surety Company’s Bond”; the conditions of the bond are set furth as: „ “Whereas: The said principal has filed its charter and statement and in other respects conformed to the requirements of the Statutes for the transaction of a Guaranty and Surety Insurance business in Arkansas; and, “Whereas, The said Company proposes to enter this State (or continue in this State) for the purpose of" }, { "docid": "13483273", "title": "", "text": "defaults, but for carrying the new policies forward. 3. That the antidiscrimination statute of Missouri, section 5729, Revised Statutes, Missouri, 1929 (Mo. St. Ann. § 5729, p. 4369), which provides: “No life insurance company doing business in this state shall make or permit any distinction or discrimination in favor of individuals between insurants (the insured) of the same class and equal expectations of life in the amount or payment of premiums or rates charged for policies of life or endowment insurance, or in the dividends or other benefits payable thereon, or in any other of the terms and conditions of the contracts it makes; * * * ” did not permit the company in its policy to make any distinction in the options available in case of default in payment of premiums between an insured who had borrowed upon his policy and one who had not. With respect to all of these questions, our views are in accord with those of the court below. The dates when premiums fell due were those agreed to by the parties in the policy, and were therefore binding upon them. New York Life Ins. Co. v. Silverstein (C. C. A. 8) 53 F.(2d) 986, 989; Sellars v. Continental Life Ins. Co. (C. C. A. 4) 30 F.(2d) 42, 44-45; McCampbell v. New York Life Ins. Co. (C. C. A. 5) 288 F. 465, 468, 469; McConnell v. Provident Savings Life Assur. Soc. of New York (C. C. A. 6) 92 F. 769, 771-772; Whitney v. Union Central Life Ins. Co. (C. C. A. 8) 47 F.(2d) 861, 864-866. Under the terms of the policy, reinstatement restored the old policy and did not create a new one. Business Men’s Assurance Co. of America v. Scott (C. C. A. 8) 17 F.(2d) 4, 6, 7; Travelers’ Ins. Co. v. Ziegler (Tex. Civ. App.) 250 S. W. 1115, 1116, 1117. See, also, New York Life Ins. Co. v. Statham et al., 93 U. S. 24, 31-33, 23 L. Ed. 789. Any other rule as applied to level premium life insurance would be legally unsound and aetuarially absurd." }, { "docid": "14681632", "title": "", "text": "the insured, and as said by this court in Business Men’s Assur. Co. v. Campbell, 32 F.(2d) 995,. 997: “ ‘The rule is settled that in case of ambiguity that construction of the policy will be adopted. which is most favorable to the insured.’ Mutual Life Ins. Co. v. Hurni Packing Co., 263 U. S. 167, 44 S. Ct. 90, 68 L. Ed. 235, 31 A. L. R. 102. In the absence of fraud, the applicant’s failure to disclose facts about which no questions are asked will not avoid a policy.” We are of the opinion that under the testimony in this case, with such favorable inferences as might reasonably have been drawn therefrom, the most that can be said is that the facts and attendant circumstances were such that fair-minded men might reasonably draw different inferences or conclusions therefrom, and hence the ease was one for the jury and not for the court to decide. The judgment of the lower court should be and is reversed, and the cause remanded, with directions to grant the plaintiff a new trial. KENYON, Circuit Judge (dissenting). My firm conviction that the trial court was right in directing a verdiet for the defendant in this case forces me to dissent from the opinion of the majority. The motion to direct a verdiet was on the ground that the applicant made material misrepresentation’s in answering question 10 of the-application. I think the assigned reason of the motion is immaterial if the judgment below was in fact a right one. Stipcich v. Insurance Co., 277 U. S. 311, 48 S. Ct. 512, 72 L. Ed. 895. The insured received from defendant three policies of life insurance, aggregating $25,-000. Applications were signed on July 27, 1928. The policies were dated August 11, 1928, and were delivered to insured on August 21, 1928. The insured died on November 18, 1928. Insured had $7,000 of insurance on his life prior to these policies. The policies provided in article 10 that statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties. In" }, { "docid": "6859726", "title": "", "text": "S. Ct. 102, 106 D. S. 124, 130, 27 L. Ed. 104. After the company had accepted the applications, the contract consisted of the applications, the note, and- the policy. Iowa Life Insurance Co. v. Lewis, 23 S. Ct. 126, 187 U. S. 335, 346, 47 L. Ed. 204; Insurance Co. v. Norton, 96 U. S. 234, 240, 24 L. Ed. 689. The statutes of South Dakota did not enter into the making of this contract for reinstatement of the policy, nor did they govern its validity, nor the interpretation to be put upon the terms of the contract. In the absence of a statute, a contract made between the insured and the insurer, providing that a policy shall cease to be in effect, if a note, which has been given for the payment of a premium on the policy, is not paid at maturity, is a valid contract, and no affirmative action by the insurer canceling .the policy is necessary. Iowa Life Insurance Co. v. Lewis, 23 S. Ct. 126, 187 U. S. 335, 351, 353,47 L. Ed. 204; Manhattan Life Ins. Co. v. Wright, 126 F. 82, 85, 61 C. C. A. 138; Lefler v. New York Life Ins. Co., 143 F. 814, 817, 74 C. C. A. 488; New York Life Ins. Co. v. Slocum, 177 F. 842, 847,101 C. C. A. 56; Reed v. Bankers’ Reserve Life Ins. Co. (C. C.) 192 F. 408, 411; Philadelphia Life Ins. Co. v. Hayworth (C. C. A.) 296 F. 339, 343. At the time of the making of the contract in question, there was in effect in Indiana a statute somewhat similar to the statutes of South Dakota, which have. been mentioned. Section 4622a, Burns’ Ann. Indiana Stats. (1914), provided that no policy of life insurance should be issued or delivered in that state, or be issued by a life insurance company organized under the laws of that state, unless- it contained a provision “that the policy, together with the application therefor, a copy of which application shall be attached to the policy and made a part thereof, shall" }, { "docid": "6909906", "title": "", "text": "to the anniversary of the birth of the policy which occurred on the approval of the application. It is true that option 1, article 14, of the policy states that the reserve value shall be applied to the extension of this policy as participating term insurance “from the date to which premiums have been paid.” It does not state, however, that this shall be from the date on which premiums are paid or are required to be paid. Subscriptions to newspapers and periodicals are frequently required to be paid in advance, but when an annual subscription is thus paid, it is paid to the anniversary date from which the subscription begins to run and not from the date on which payment was made. The same is frequently applied to other business organizations, social clubs, etc. Where dues ,are paid in advance, they are universally recognized as covering the period from which the privilege, for which, payment is made, begins to run and not from the date of payment itself.. We think it clear, therefore, that the date to which premiums were paid as provided in the policy was the enfi of the policy year from which the insurance became effective. The ease of Mutual Life Ins. Co. v. Hurni Packing Co., 263 U. S. 167, 44 S. Ct. 90, 68 L. Ed. 235, 31 A. L. R. 102, cited in appellee’s brief, is conclusive of this point. In that ease the court held that it was competent for the parties to agree that the effective date of the policy should he one prior to its actual execution and that that was what they did. A special provision of the application provided that tho applicant by request might have the policy antodated for a period not to exceed six months. This provided for his insurance at the age of forty-seven. Under this agreement the policy was issued as of August 23 and tho insurance became effective from its date of issue, although it was not actually applied for until September 2 and not executed and delivered until September 7. The court" } ]

[ { "docid": "11824391", "title": "", "text": "specificity. In his answer taxpayer did not attempt to contradict the amounts shown in the Director’s affidavit, but simply asserted that the matter was not foreclosed from litigation by the earlier criminal conviction. Such response, at most, only demonstrates a hope that evidence contradictory to the Government’s claim can be produced. An unverified pleading denying the factual statements contained in an affidavit filed in support of summary judgment is not sufficient to controvert the affidavit. The response is certainly not sufficient to show the existence of a triable issue of fact as to the amount due. Beaufort Concrete Co. v. Atlantic States Constr. Co., 352 F.2d 460 (5 Cir. 1965); Gauck v. Meleski, 346 F.2d 433, 436 (5 Cir. 1965); Wilkinson v. Powell, 149 F.2d 335 (5 Cir. 1945). Taxpayer primarily opposed the Government’s motion on the ground that he was not an importer of the automobiles on which the excise taxes were alleged to be due. The Government contends that a finding that taxpayer was an importer was necessary to his criminal conviction and is therefore not open to litigation in the present action. Taxpayer was found guilty of wilfully failing to file the tax return and to pay the excise tax on imported automobiles. Under 26 U.S.C. § 4061(a) it is provided that “[t]here is hereby imposed upon the following articles * * * [automobile chassis and bodies] sold by the * * * importer a tax equivalent to the specified percent of the price for which so sold * * * ” Thus it was necessary in order to convict taxpayer for failure to pay the tax imposed by the above quoted section, to find that he was in fact an importer. Therefore taxpayer was precluded by collateral estoppel from relitigating that issue in the instant case. Tomlinson v. Lefkowitz, 334 F.2d 262 (5 Cir. 1964), cert. den. 379 U.S. 962, 85 S.Ct. 650, 13 L.Ed.2d 556 (1965). Finding no triable issue of material fact and that the Government was entitled to judgment as a matter of law, we hold that the district court committed no error" } ]

[ { "docid": "8557125", "title": "", "text": "income tax evasion for the years 1960 and 1961 in violation of 26 U.S.C. § 7201. The defendant was convicted on Counts 1, 3 and 4, and found not guilty on Counts 2 and 5. In other words, the defendant was convicted on Counts 1 and 3, which charged a violation of 26 U.S.C. § 7201, and on Count 5, which charged a violation of 26 U.S.C. § 7206(1). The opinion reveals that various methods of proof were used by the Government in the prosecution of counts where the indictment charged a violation of 26 U.S.C. § 7201, but the method of proof used by the Government in the prosecution of Counts 2, 4, and 5 “was by specific items omitted from his income tax returns.” The defendant in his brief in support of the motion expresses the fear that in the event of an adverse decision or conviction on any of the counts in the indictment he will be subjected to the civil fraud penalty and a waiver of the statute of limitations for assessment, because of the recent trend of decisions which will preclude him from again litigating the fraud issue. He cites the cases of Tomlinson v. Lefkowitz, (5 Cir. 1964) 334 F.2d 262, cert. denied 379 U.S. 962, 85 S.Ct. 650, 13 L.Ed.2d 556 (1965); Moore v. United States, 360 F.2d 353 (4 Cir. 1965); Armstrong v. United States, (Ct.Cl.1965) 354 F.2d 274; Amos v. C. I. R., (1965) 43 T.C. 50, aff’d. 360 F.2d 358 (4 Cir. 1965); Arctic Ice Cream Co., (1965) 43 T.C. 68, and states: “Under these cases the rules and rationale of which were carefully sought, planned and engineered by the government, the defendant is faced with a two-pronged result in the event of a guilty verdict: He will be punished under the criminal sanctions of the Federal Tax Laws; he will be estopped from pleading the statute of limitation upon assessment and will be denied his day in court on the civil fraud penalty. * * * ****** “The defendant is placed in the position of defending both his freedom" }, { "docid": "23533368", "title": "", "text": "court under his own name — and Texas does not recognize a privacy cause of action for giving publicity to even highly private facts that are a matter of public record. Moreover, we sustain the district court’s determination that Johnson had not demonstrated that his conviction was not of legitimate concern to the public, and thus failed to establish the third element of the Texas tort. The conviction was for a felony, carrying a penalty of up to five years’ imprisonment, and requiring proof of specific criminal intent. See n. 13, supra. As the Texas Supreme Court recently held, after an exhaustive review of decisions throughout the nation, “[t]he weight of reason and authority lead us to the conclusion that a violation of 26 U.S.C. § 7201 involves moral turpitude per se.” Matter of Humphreys, 880 S.W.2d 402, 408 (Tex.1994). In Cox Broadcasting, the Court said “[t]he commission of crime, prosecutions resulting from it, and judicial proceedings arising from the prosecutions, however, are without question events of legitimate concern to the public .... ” Id. 420 U.S. at 492, 95 S.Ct. at 1045 (emphasis added). On this basis alone, it is evident that Johnson’s recent conviction was “without question” a matter “of legitimate concern to the public.” Further, SEC regulations required (and require) that there be publicly reported annually as to each executive officer and director of a publicly held company such as American National not only such person’s name and age and the positions and offices with the company held by such person, but also any criminal conviction (excluding traffic violations and other minor offenses) within the past five years if such conviction is “material to an evaluation of the ability or integrity” of that person. The law has long considered conviction of any felony as material to an evaluation of the integrity of the person so convicted. See, e.g., Green v. Beck Laundry Machine Co., 490 U.S. 504, 521-26, 109 S.Ct. 1981, 1991-93, 104 L.Ed.2d 557 (1989) (witness veracity). Indeed, an offense, such as a violation of section 7201, which is held to be one of “moral turpitude" }, { "docid": "1451525", "title": "", "text": "Court that the Government itself was collaterally estopped from redetermining the amount of taxes owed for the years in question, since it had stipulated in the earlier criminal proceeding the exact amount owed. The District Judge ruled that the Government was not estopped because the determination of an exact liability was not “essential to the judgment,” a prerequisite to the application of the doctrine of collateral estoppel. Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 601, 68 S.Ct. 715, 92 L.Ed. 898 (1948). With this ruling we agree. As stated by the District Judge, “a conviction under 26 U.S.C.A. § 7201 does not require the proving of any definite sum of taxable income beyond a substantial amount.” Moore v. United States, 235 F.Supp. 387, 391 (W.D.Va.1964). There is therefore no basis here for the application of the estoppel doctrine against the Government in respect to the amount of taxes due. Affirmed in part and reversed in part. Modification of Decision of December 7, 1965. Jerome H. Moore and his wife, Mildred V. Moore, filed joint income tax returns for the years 1955-1958. In 1961 the husband was convicted after trial, pursuant to 26 U.S.C.A. § 7201, for willful evasion of taxes in those years. Subsequently a fraud assessment was made against both taxpayers pursuant to 26 U.S.C.A. § 6653(b), and when they sued in the District Court for a refund of certain taxes paid, the Government counterclaimed for the unpaid fraud penalties. In our original opinion, issued December 7,1965, we agreed with the Government’s contention that the existence of fraud on Mr. Moore’s part was necessarily determined in his prior criminal trial and that as to him the issue of fraud was therefore foreclosed in the civil proceeding, adopting the view of the Fifth Circuit in Tomlinson v. Lefkowitz, 334 F.2d 262 (1964), cert. denied, 379 U.S. 962, 85 S.Ct. 650, 13 L.Ed.2d 556 (1965). As to Mrs. Moore, we expressly held that the collateral estoppel applied to her as well, even though she was not a party to the criminal proceeding, since she signed the joint returns involved" }, { "docid": "12510006", "title": "", "text": "sir.” In these circumstances, and on this barren record, it is wholly fanciful to suggest that the inclusion in the press releases of the essentially minor matters whose disclosure was prohibited by section 6103 was a cause of Johnson’s loss of position at American National or of any material damage to him. Conclusion The majority and the district court recite evidence, principally from Johnson himself, tending to indicate that he wasn’t really guilty of felony tax evasion, but was merely negligent at worst, carelessly relying on his wife’s confused bookkeeping, and/or that he simply sacrificed himself to protect his wife. Any such contention is wholly inconsistent with the wording of the information to which Johnson pleaded guilty as well as with the necessary elements of a section 7201 violation. See footnote 12 supra. In this case Johnson’s conviction— which he has never challenged — wholly bars him from taking any such position, especially in this suit against the United States, which successfully prosecuted him for his tax fraud against it. See, e.g., Piper v. United States, 392 F.2d 462, 464-65 (5th Cir.1968); Tomlinson v. Lefkowitz, 334 F.2d 262, 264-65 (5th Cir.1964), cert. denied, 379 U.S. 962, 85 S.Ct. 650, 13 L.Ed.2d 556 (1965). See also, e.g., United States v. Thomas, 709 F.2d 968, 972 (5th Cir.1983). The majority acknowledges that there was no breach of the plea of agreement, but nevertheless it, and the district court, seem to view the matter as if Johnson’s legitimate expectations from the agreement were frustrated. Again, however, the conviction stands and Johnson is bound by its necessarily implied findings. He never sought to challenge it. Having received a short, probated sentence for what we must presume was the willful, knowing, and intentional cheating of the United States out of several thousand dollars, and protected by that sentence from more severe punishment, he now collects several million dollars from the United States because this matter of public record — which he admits all the shareholders of his publicly-held company would have to have been specifically informed of anyway — was mentioned in two brief Galveston" }, { "docid": "9845044", "title": "", "text": "part of his underpayment for the same year was “due to fraud.” See, e.g., Tomlinson v. Lefkowitz, 334 F.2d 262 (5th Cir. 1964), cert. denied 379 U.S. 962 (1965); Moore v. United States, 360 F.2d 353, 355 (4th Cir. 1966), cert. denied 385 U.S. 1001 (1967). However, in my opinion, to hold that a conviction of “willfully” making a false statement in an income tax return within the meaning of section 7206(1) estops a taxpayer from denying that any underpayment of tax he may have made for the year of the return was “due to fraud” misapplies the principle of collateral estoppel. Conviction under section 7206(1) establishes that petitioner willfully, or voluntarily and intentionally, violated the legal duty not to make a false statement as to any material matter on his income tax return. It does not establish that he violated that duty with an intent, or in an attempt, to evade tax. I am aware that the finding and judgment entered by the District Court states: “Defendant has been convicted as charged of the offense(s) of filing false and fraudulent income tax returns. 26:7206(1).” But, in entering this minute order, the court simply paraphrased the heading of section 7206, “Fraud and False Statements.” Paragraphs (2), (3), and (4) of section 7206 describe crimes involving fraud, but, as explained above, section 7206(1) does not. While I disagree with the majority position that petitioner is estopped from denying fraud, I think petitioner is estopped to deny the question actually litigated and determined in the criminal action — in the words of the indictment, that he— wilfully and knowingly * * * [filed an income tax return for each of the 3 years for which he was convicted which] he did not believe to be true and correct as to every material matter, in that * * * he then and there well knew and believed * * * the correct total income for the period reported was an amount substantially in excess of the reported total sum [in each such year]. Because “a fact decided in an earlier suit is conclusively" }, { "docid": "9845016", "title": "", "text": "conspiracy prior to 1929. In that case, the issue to be determined was whether petitioner was engaged in a conspiracy in 1930 and should be enjoined from so engaging. The Supreme Court stated in this respect (pp. 298-299): The judgment in the criminal case conclusively established in favor of the United States and against those who were found guilty that within the period covered by the indictment the latter were parties to the conspiracy charged. The complaint in this suit includes the allegations on which that prosecution was based. The defendants in this suit who had been there convicted could not require proof of what had been duly adjudged between the parties. And, to the extent that the answers attempted to deny participation of convicted defendants in the conspiracy of which they had been found guilty, they are false and sham and the district court rightly so treated them. Oklahoma v. Texas, 256 U.S. 70, 85. Cf. Coffey v. United States, 116 U.S. 436, 442. Stone v. United States, 167 U.S. 178, 184. Following the above-quoted holding, the Court discussed the evidence with respect to the existence of a conspiracy for the period following the period to which the prior conviction related, which was the issue in the case. Local 167 v. United States, supra, was one of the cases relied on in Tomlinson v. Lefkowitz, 334 F.2d 262 (5th Cir. 1964), cert. denied 379 U.S. 962 (1965), for the holding that a conviction of a taxpayer under section 7201 estopped him from denying his liability for the addition to tax for fraud under section 6653(b). In Thomas v. United States, 314 F.2d 936 (5th Cir. 1963), remanding a Memorandum Opinion of this Court, the Government was held collaterally estopped by a prior District Court decision involving the taxpayer’s liability for income taxes in 1955 to deny that a farm was operated for a profit in 1955. The issue involved in the second case was whether the farm was operated for profit in the years 1956 through 1958. In Pena-Cabanillas v. United States, 394 F.2d 785 (9th Cir. 1968), it" }, { "docid": "12510007", "title": "", "text": "States, 392 F.2d 462, 464-65 (5th Cir.1968); Tomlinson v. Lefkowitz, 334 F.2d 262, 264-65 (5th Cir.1964), cert. denied, 379 U.S. 962, 85 S.Ct. 650, 13 L.Ed.2d 556 (1965). See also, e.g., United States v. Thomas, 709 F.2d 968, 972 (5th Cir.1983). The majority acknowledges that there was no breach of the plea of agreement, but nevertheless it, and the district court, seem to view the matter as if Johnson’s legitimate expectations from the agreement were frustrated. Again, however, the conviction stands and Johnson is bound by its necessarily implied findings. He never sought to challenge it. Having received a short, probated sentence for what we must presume was the willful, knowing, and intentional cheating of the United States out of several thousand dollars, and protected by that sentence from more severe punishment, he now collects several million dollars from the United States because this matter of public record — which he admits all the shareholders of his publicly-held company would have to have been specifically informed of anyway — was mentioned in two brief Galveston press releases. Neither the law nor the facts support this recovery. Johnson has indeed made a silk purse from a sow’s ear, and we should not countenance it. . 28 U.S.C. §§ 1346, 2671-2680. . Under this construction, section 6103 prohibits \"only the disclosure of confidential tax return information” and hence does not prohibit disclosure of return information once that information has been “made a part of the public domain.\" Lampert at 338. I am in essential agreement with Lampert. Cf. United States v. Wallington, 889 F.2d 573, 576 (5th Cir.1989) (18 U.S.C. § 1905 restricted to confidential information). .Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). . Gill was a Texas case. Texas has recognized the good Samaritan doctrine since well before enactment of the FTCA. See, e.g., Colonial Savings Ass’n v. Taylor, 544 S.W.2d 116, 119 (Tex.1976). . Similarly, in an action between private parties who owe a duty one to the other under state law, such as the duties" }, { "docid": "9845043", "title": "", "text": "elements, such as an “attempt to evade,” prescribed by section 7201, from the uniform requirement of willfulness. The language quoted above from the Amos opinion was used in the context of a discussion of the similarity of section 7201 (“willfully attempts * * * to evade * * * tax”) and section 6653(b) (“underpayment * * * due to fraud”). The element of fraud necessary for conviction under section 7201 was equated with that essential for the imposition of the civil penalty under section 6653(b). It is the attempt to evade tax which is tantamount to fraud. “The real character of the offense lies * * * in the attempt to defraud the government by evading the tax.” Gariepy v. United States, 220 F.2d 252, 259 (6th Cir. 1955), cert. denied 350 U.S. 825 (1955). Thus, it is correct to conclude, as we did in Amos, that a taxpayer’s conviction under section 7201 of having attempted to evade or defeat a tax for a taxable year estops that taxpayer from denying under section 6653(b) that part of his underpayment for the same year was “due to fraud.” See, e.g., Tomlinson v. Lefkowitz, 334 F.2d 262 (5th Cir. 1964), cert. denied 379 U.S. 962 (1965); Moore v. United States, 360 F.2d 353, 355 (4th Cir. 1966), cert. denied 385 U.S. 1001 (1967). However, in my opinion, to hold that a conviction of “willfully” making a false statement in an income tax return within the meaning of section 7206(1) estops a taxpayer from denying that any underpayment of tax he may have made for the year of the return was “due to fraud” misapplies the principle of collateral estoppel. Conviction under section 7206(1) establishes that petitioner willfully, or voluntarily and intentionally, violated the legal duty not to make a false statement as to any material matter on his income tax return. It does not establish that he violated that duty with an intent, or in an attempt, to evade tax. I am aware that the finding and judgment entered by the District Court states: “Defendant has been convicted as charged of the" }, { "docid": "23533404", "title": "", "text": "not preclude its being private and intimate or embarrassing and not of public concern; but it does not make it so. Industrial Foundation at 686. . Thus, in Cox Broadcasting, the Supreme Court quoted with approval from Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 1254, 91 L.Ed. 1546 (1947), in part as follows: \" 'A trial is a public event. What transpires in the courtroom is public property.' ” Cox Broadcasting 420 U.S. at 492, 95 S.Ct. at 1045. . See Industrial Foundation at 684-85: \"The last requirement for an actionable invasion of privacy is that the information publicized not be of legitimate concern to the public.” . See n. 36, supra. All such information must also be included in the proxy statements which must accompany the annual reports sent the shareholders. Id. . See also Tex.Ins.Code Ann. art. 21.07-3, § 12(f) (conviction of any felony grounds for revocation of license of managing general agent; while Johnson may not have been a managing general agent, it is undisputed that a major portion of his duties consisted of performing functions very similar to those of a managing general agent as defined in Tex.InsCode Ann. art. 21.07-3 § 2(a)). The district court's determination that Johnson’s conviction was not a matter “that a reasonable investor would consider ... important in deciding whether to invest,\" 760 F.Supp. at 1230, is not controlling as to whether Johnson’s conviction would have to be included in the annual report to the SEC and in the proxy statement. To begin with, the test under the regulations is not the conviction’s materiality to the investment decision, but is rather its materiality “to an evaluation of the ... integrity of” the person convicted. Further, the district court based its conclusion on the assumption that the investor would know that Johnson was in fact not guilty of a section 7201 violation. 760 F.Supp. at 1220, 1221, 1230 (indeed, at trial the court observed that \"what Mr. Johnson did here was, in effect, like getting a speeding ticket”). This approach, however, is wide of the mark, for the question" }, { "docid": "23533378", "title": "", "text": "United States, 392 F.2d 462, 464-65 (5th Cir.1968); Tomlinson v. Lefkowitz, 334 F.2d 262, 264-65 (5th Cir.1964), cert. denied, 379 U.S. 962, 85 S.Ct. 650, 13 L.Ed.2d 556 (1965); United States v. Thomas, 709 F.2d 968, 972 (5th Cir.1983). . Section 6103(a) provides: \"(a) General rule. — Returns and return information shall be confidential, and except as authorized by this title— (1) no officer or employee of the United States, (2) no officer or employee of any State, any local child support enforcement agency, or any local agency administering a program listed in subsection (! )(7)(D) who has or had access to returns or return information under this section, and (3) no other person (or officer or employee thereof) who has or had access to returns or return information under subsection (e)(l)(D)(iii), (Z)(12), paragraph (2) or (4)(B) of subsection (m), or subsection (n), shall disclose any return or return information obtained by him in any manner in connection with his service as such an officer or an employee or otherwise or under the provisions of this section. For purposes of this subsection, the term 'officer or employee’ includes a former officer or employee.” Section 6103(b)(2) defines “return information” as including: \"(A) a taxpayer's identity, the nature, source, or amount of his income, ... deductions, ... liabilities, ... tax liability, ... deficiencies, ... whether the taxpayer's return was, is being, or will be examined or subject to other investigation or processing, or any other data, received by, ... [or] prepared by ... the Secretary with respect to a return or with respect to the determination of the existence, or possible existence, of liability (or the amount thereof) of any person under this title for any tax, penalty, interest, fine, forfeiture, or other imposition, or offense....” Section 6103(b)(6) states that \"[t]he term ‘taxpayer identity’ means the name of a person with respect to whom a return is filed, his mailing address, his taxpayer identifying number (as described in section 6109), or a combination thereof.\" . Section 7217 provided: \"(a) General rule. — Whenever any person knowingly, or by reason of negligence, discloses" }, { "docid": "12510013", "title": "", "text": "Court, however, declined to apply this more onerous standard because the legislative amendment “does not by its terms govern a cause of action arising or accruing before its effective date.” Id. The plain implication of Poole is that the statutory cause of action would be exclusive of any court-created action under a negligence per se theory with respect to statutory violations occurring after the legislation went into effect. . Clearly, state as well as federal courts are available for suits under section 7217 itself, as its grant of federal jurisdiction does not purport to be exclusive. See, e.g., Tafflin v. Levitt, 493 U.S. 455, 110 S.Ct. 792, 107 L.Ed.2d 887 (1990). . For example, could Texas law allow civil recovery for a section 6103 proscribed disclosure even though it resulted \"from a good faith, but erroneous, interpretation of section 6103” and was hence not actionable under section 7217(b)? Could Texas law authorize a longer limitations period than that of section 7217(d)? Could Texas law authorize recovery of more than the $1,000 provided for in section 7217(c) absent proof of larger actual damages? . The information to which Johnson pleaded guilty charged a violation of 26 U.S.C. § 7201, a felony that then provided for a maximum prison term of five years and a $10,000 fine for “[a]ny person who willfully attempts in any manner to evade or defeat any tax imposed by this title.\" The law clearly is, and has been in this Circuit since well before any of the events at issue, that establishing a violation of section 7201 requires a finding that the defendant \"acted willfully and knowingly with specific intent to evade his income tax obligation,” United States v. Daniels, 617 F.2d 146, 148 (5th Cir.1980), and that \"a negligent, careless, or unintentional understatement of income” is not \"sufficient.” United States v. Garber, 607 F.2d 92, 97-98 (5th Cir.1979). \"The government must demonstrate that the defendant willfully concealed and omitted from her return income which she knew was taxable.” Id. at 98. The information here alleged in relevant part as follows: “ ... on ... April 15," }, { "docid": "4856078", "title": "", "text": "issue was due to fraud. Sec. 7454(a); Rule 142(b). Respondent states that he may rely upon the doctrine of collateral estoppel (estoppel by judgment) in order to carry his burden of proof on the issue of Myeck’s fraud for 1979 and DiLeo’s fraud for 1980 and 1982. A taxpayer is collaterally estopped from denying civil tax fraud under section 6653(b) when convicted for criminal tax evasion under section 7201 for the same taxable year. Moore v. United States, 360 F.2d 353, 354 (4th Cir. 1966); Tomlinson v. Lefkowitz, 334 F.2d 262, 265 (5th Cir. 1964); Amos v. Commissioner, 43 T.C. 50, 55 (1964), affd. 360 F.2d 358 (4th Cir. 1965). Mycek was convicted of income tax evasion under section 7201 for 1979. DiLeo was convicted of income tax evasion under section 7201 for 1980 and 1982. Therefore, Mycek and DiLeo are collaterally estopped from denying civil tax fraud under section 6653(b) for those years. Petitioners, however, contend that “no collateral estoppel exists” because “the transcripts indicate that Mycek and DiLeo pleaded guilty to I.R.C. 7206(1) and not to 7201.” The transcripts of Mycek’s and DiLeo’s allocution hearing submitted into evidence show that Mycek and DiLeo pled guilty to income tax evasion under section 7201. Consequently, we reject petitioners’ contention that Mycek and DiLeo pled guilty to willfully subscribing to false returns under section 7206(1) rather than tax evasion under section 7201. Respondent bears the burden of proving by clear and convincing evidence that Mycek and DiLeo fraudulently underpaid their income taxes for the years not covered by the criminal convictions under section 7201. Respondent must establish that (1) the taxpayer has underpaid his taxes for each year; and (2) some part of the underpayment is due to fraud. Hebrank v. Commissioner, 81 T.C. 640, 642 (1983). To prove an underpayment, the Commissioner is not required to establish the precise amount of the deficiency determined by him. However, he cannot discharge his burden by simply relying on the taxpayer’s failure to prove error in his determination of the deficiency. Otsuki v. Commissioner, 53 T.C. 96, 106 (1969); Pigman v. Commissioner, 31" }, { "docid": "7153431", "title": "", "text": "53, 27 L.Ed.2d 56 (1970); Moore v. United States, supra, 360 F.2d 353 at 355-356 (conviction following trial); Amos v. C.I.R., 360 F.2d 358 (4 Cir.1965) affirming 43 T.C. 50; Armstrong v. United States, 354 F.2d 274, 291 (Ct.Cl.1965) (conviction following trial); Tomlinson v. Lefkowitz, 334 F.2d 262, 264-265 (5 Cir.1964) cert. den. 379 U.S. 962, 85 S.Ct. 650, 13 L.Ed.2d 556 (1965) (conviction following trial.) See also, Arctic Ice Cream Co. v. Commissioner, 43 T.C. 68, 75 (1964) and the recent decisions in Acker v. United States, (N.D.Ohio 1981) 519 F.Supp. 178, 182, and Considine v. United States, 683 F.2d 1285 (9 Cir.1982). In the face of the foregoing authorities, appellant’s citation of state cases is not persuasive. Indeed, he recognizes that “most of the federal cases take the opposite position” to that which he urges in this appeal. We conclude that appellant’s contention that he has been denied his day in court with respect to the issue of fraud is without merit. The judgment of the Tax Court is Affirmed. . § 7201. Attempt to evade or defeat tax: Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 5 years, or both, together with the costs of prosecution. . § 6653. Failure to pay tax. (b) Fraud. — If any part of any underpayment ... of tax required to be shown on a return is due to fraud, there shall be added to the tax an amount equal to 50 percent of the underpayment .... . In addition to the taxable years 1968-1970, the years covered by the criminal indictment, the Commissioner issued a separate statutory notice finding deficiencies, with additions, for the tax year 1972. The 1972 tax claim has been settled and is not an issue in this appeal. . In this appeal, the Circuit stated: “A guilty plea must conform to the" }, { "docid": "23533405", "title": "", "text": "of his duties consisted of performing functions very similar to those of a managing general agent as defined in Tex.InsCode Ann. art. 21.07-3 § 2(a)). The district court's determination that Johnson’s conviction was not a matter “that a reasonable investor would consider ... important in deciding whether to invest,\" 760 F.Supp. at 1230, is not controlling as to whether Johnson’s conviction would have to be included in the annual report to the SEC and in the proxy statement. To begin with, the test under the regulations is not the conviction’s materiality to the investment decision, but is rather its materiality “to an evaluation of the ... integrity of” the person convicted. Further, the district court based its conclusion on the assumption that the investor would know that Johnson was in fact not guilty of a section 7201 violation. 760 F.Supp. at 1220, 1221, 1230 (indeed, at trial the court observed that \"what Mr. Johnson did here was, in effect, like getting a speeding ticket”). This approach, however, is wide of the mark, for the question is not whether what Johnson did, or says he did, is material, but rather whether his “conviction” (or what he was convicted of) is material (to an evaluation of his integrity). Further, as previously noted, Johnson is estopped to challenge his guilt of the section 7201 offense as alleged in the information. See n. 13, supra. . Moreover, that Johnson's felony conviction is a matter of legitimate public concern likewise renders nonintimate information tending to identify him as the person so convicted — such as his name, age, residence, job title — likewise of legitimate public concern. The two are really inseparable. Cf. Ross v. Midwest Communications, Inc., 870 F.2d 271, 274 (5th Cir.1989). . Because Johnson has never complained of any disclosure assertedly in violation of section 6103(a) that disclosed matters of open public record, we need not and do not determine whether to follow the rule of Lampert v. United States, 854 F.2d 335, 338 (9th Cir.1988), cert. denied, 490 U.S. 1034, 109 S.Ct. 1931, 104 L.Ed.2d 403 (1989), that section 6103(a) does" }, { "docid": "23533377", "title": "", "text": "section 7201 requires that the defendant have \"acted willfully and knowingly with specific intent to evade his income tax obligations.” United States v. Daniels, 617 F.2d 146, 148 (5th Cir.1980). See also United States v. Garber, 607 F.2d 92, 97-98 (5th Cir.1979) (\"a negligent, careless, or unintentional understatement of income” does not violate section 7201; rather, \"[t]he Government must demonstrate that the defendant willfully concealed and omitted from her return income which she knew was taxable”). Moreover, the district judge refused to accept a nolo plea from Johnson, and, as the government pointed out below, Johnson's written plea, which he signed and swore to in open court, stated that he was \"entering this plea of guilty ... because I am guilty\" (emphasis added). Johnson's plea hence cannot be characterized as an \"Alford\" plea. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). In this civil suit by Johnson against the United States, Johnson is clearly estopped from taking any positions inconsistent with his subsisting section 7201 conviction. Piper v. United States, 392 F.2d 462, 464-65 (5th Cir.1968); Tomlinson v. Lefkowitz, 334 F.2d 262, 264-65 (5th Cir.1964), cert. denied, 379 U.S. 962, 85 S.Ct. 650, 13 L.Ed.2d 556 (1965); United States v. Thomas, 709 F.2d 968, 972 (5th Cir.1983). . Section 6103(a) provides: \"(a) General rule. — Returns and return information shall be confidential, and except as authorized by this title— (1) no officer or employee of the United States, (2) no officer or employee of any State, any local child support enforcement agency, or any local agency administering a program listed in subsection (! )(7)(D) who has or had access to returns or return information under this section, and (3) no other person (or officer or employee thereof) who has or had access to returns or return information under subsection (e)(l)(D)(iii), (Z)(12), paragraph (2) or (4)(B) of subsection (m), or subsection (n), shall disclose any return or return information obtained by him in any manner in connection with his service as such an officer or an employee or otherwise or under the provisions of" }, { "docid": "9845017", "title": "", "text": "above-quoted holding, the Court discussed the evidence with respect to the existence of a conspiracy for the period following the period to which the prior conviction related, which was the issue in the case. Local 167 v. United States, supra, was one of the cases relied on in Tomlinson v. Lefkowitz, 334 F.2d 262 (5th Cir. 1964), cert. denied 379 U.S. 962 (1965), for the holding that a conviction of a taxpayer under section 7201 estopped him from denying his liability for the addition to tax for fraud under section 6653(b). In Thomas v. United States, 314 F.2d 936 (5th Cir. 1963), remanding a Memorandum Opinion of this Court, the Government was held collaterally estopped by a prior District Court decision involving the taxpayer’s liability for income taxes in 1955 to deny that a farm was operated for a profit in 1955. The issue involved in the second case was whether the farm was operated for profit in the years 1956 through 1958. In Pena-Cabanillas v. United States, 394 F.2d 785 (9th Cir. 1968), it was held in a case involving an indictment of a person for illegally reentering the United States after having been deported that the person was estopped by a prior conviction to deny that he was an alien as of the date of the prior conviction. It was specifically pointed out that evidence was proper with respect to whether his reentry into the United States was legal and his status at the date of that reentry. In Gemma v. Commissioner, 46 T.C. 821, 834 (1966), we held in a case involving the addition to tax for fraud under section 6653(b), but not involving an issue as to the statute of limitations, that the taxpayer was estopped by entry of a plea of guilty to a charge of willful failure to file an income tax return for the year 1956 to deny that his failure to file a return for that year was willful. The case of United States v. Fabric Garment Co., 366 F.2d 530 (2d Cir. 1966), discussed at some length in Considine v. Commissioner," }, { "docid": "1451518", "title": "", "text": "SOBELOFF, Circuit Judge: The principal question before us is whether a criminal conviction for tax evasion works a collateral estoppel on the issue of fraud in a subsequent civil suit over a fraud penalty. The point arises in a suit for refund filed by Mr. and Mrs. Jerome H. Moore for taxes paid in 1960 for the years 1955-58. The Commissioner filed a counterclaim for additional taxes and fraud penalties assessed pursuant to 26 U.S.C.A. § 6653(b) for the tax years in question. The only evidence offered by the Commissioner in support of the fraud assessment was the 1961 criminal conviction of Jei’ome Moore, after his plea of not guilty and trial, for willfully attempting to evade and defeat the payment of income taxes for the years in question in violation of 26 U.S.C.A. § 7201. The Government took the position that the existence of fraud was necessarily determined in the prior criminal trial in which Moore was convicted. The District Court rejected this contention, holding that despite the prior criminal conviction the issue of fraud was not foreclosed in the civil proceeding. We are compelled to a different view. An answer was recently given by the Fifth Circuit to the identical legal issue presented here. It held that fraud is a necessary element in a criminal conviction for evasion, and that the earlier conviction supplies the basis for a finding of fraud in the civil proceeding to determine tax liability. Tomlinson v. Lefkowitz, 334 F.2d 262 (5th Cir. 1964), cert. denied, 379 U.S. 962, 85 S.Ct. 650, 13 L.Ed.2d 556 (1965). We adopt, without repetition, Judge Tuttle’s opinion in that case. Though the evasion statute does not in terms require a finding of fraud, we can recall no case in our experience where, accepting the truth of the facts leading to conviction for evasion, one could say that there was not sufficient proof for a finding of fraud in the civil case. In fact, the taxpayers in the argument of this case have been unable to hypothesize a case contrary to this experience. The practicalities, as we have observed" }, { "docid": "23533376", "title": "", "text": "then, had thousands of employees and offices throughout the United States, and had $105 million profits in 1980. His brief describes it as \"one of the largest life insurance companies in the United States.” . In so doing, the court in effect rejected the government's contention that \"this is a matter of res judicata, it's not open to attack.\" In this respect, the district court clearly erred. Johnson's section 7201 conviction has never been challenged, much less set aside or modified. The count in the information of which Johnson was convicted alleged that he “willfully and knowingly attempted to evade and defeat a large part of the income tax due and owing by him ... for ... 1975\" by filing \"a false and fraudulent income tax return” that showed his taxable income and income tax at specified figures, \"whereas, as he then and there well knew\" the correct said figures were specified amounts, of several thousand dollars, larger (emphasis added). The italicized allegations were not surplus-age, for we have consistently held that a conviction under section 7201 requires that the defendant have \"acted willfully and knowingly with specific intent to evade his income tax obligations.” United States v. Daniels, 617 F.2d 146, 148 (5th Cir.1980). See also United States v. Garber, 607 F.2d 92, 97-98 (5th Cir.1979) (\"a negligent, careless, or unintentional understatement of income” does not violate section 7201; rather, \"[t]he Government must demonstrate that the defendant willfully concealed and omitted from her return income which she knew was taxable”). Moreover, the district judge refused to accept a nolo plea from Johnson, and, as the government pointed out below, Johnson's written plea, which he signed and swore to in open court, stated that he was \"entering this plea of guilty ... because I am guilty\" (emphasis added). Johnson's plea hence cannot be characterized as an \"Alford\" plea. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). In this civil suit by Johnson against the United States, Johnson is clearly estopped from taking any positions inconsistent with his subsisting section 7201 conviction. Piper v." }, { "docid": "12510014", "title": "", "text": "7217(c) absent proof of larger actual damages? . The information to which Johnson pleaded guilty charged a violation of 26 U.S.C. § 7201, a felony that then provided for a maximum prison term of five years and a $10,000 fine for “[a]ny person who willfully attempts in any manner to evade or defeat any tax imposed by this title.\" The law clearly is, and has been in this Circuit since well before any of the events at issue, that establishing a violation of section 7201 requires a finding that the defendant \"acted willfully and knowingly with specific intent to evade his income tax obligation,” United States v. Daniels, 617 F.2d 146, 148 (5th Cir.1980), and that \"a negligent, careless, or unintentional understatement of income” is not \"sufficient.” United States v. Garber, 607 F.2d 92, 97-98 (5th Cir.1979). \"The government must demonstrate that the defendant willfully concealed and omitted from her return income which she knew was taxable.” Id. at 98. The information here alleged in relevant part as follows: “ ... on ... April 15, 1976 ... the defendant ELVIS JOHNSON, a resident of Galveston, Texas, did willfully and knowingly attempt to evade and defeat a large part of the income tax due and owing by him to the United States for the calendar year 1975, by preparing and causing to be prepared, by signing and causing to be signed, and by mailing and causing to be mailed, ... a false and fraudulent income tax return, which was filed with the Internal Revenue Service, wherein he stated and represented that his taxable income for said calendar year was $53,589.00 and that the amount of tax due and owing thereon was the sum of $18,374.50, whereas, as he then and there well knew, his taxable income for 1975 was $59,784.18 upon which said taxable income he owed to the United States an income tax of $21,849.47 (Violation: Title 26, United States Code, Section 7201).” . While the majority refers, as did the district court, to the fact that Johnson was known as “E.E.” to many people, there is no evidence that" }, { "docid": "23533406", "title": "", "text": "is not whether what Johnson did, or says he did, is material, but rather whether his “conviction” (or what he was convicted of) is material (to an evaluation of his integrity). Further, as previously noted, Johnson is estopped to challenge his guilt of the section 7201 offense as alleged in the information. See n. 13, supra. . Moreover, that Johnson's felony conviction is a matter of legitimate public concern likewise renders nonintimate information tending to identify him as the person so convicted — such as his name, age, residence, job title — likewise of legitimate public concern. The two are really inseparable. Cf. Ross v. Midwest Communications, Inc., 870 F.2d 271, 274 (5th Cir.1989). . Because Johnson has never complained of any disclosure assertedly in violation of section 6103(a) that disclosed matters of open public record, we need not and do not determine whether to follow the rule of Lampert v. United States, 854 F.2d 335, 338 (9th Cir.1988), cert. denied, 490 U.S. 1034, 109 S.Ct. 1931, 104 L.Ed.2d 403 (1989), that section 6103(a) does not bar disclosure of matters of public record. We observe, however, that such a bar, at least as to recent federal felony convictions, would appear in some tension with Cox Broadcasting. See also Innovative Database Systems v. Morales; United States v. Wallington, 889 F.2d 573, 576 (5th Cir.1989) (construing narrowly, to avoid First Amendment concerns, nondisclosure provisions of 18 U.S.C. § 1905). Nor do we decide what breadth Lampert should have, were we to adopt it. Further, we assume, arguendo only, that there is sufficient evidence that the press releases, or the challenged matters therein that may have enhanced the public's ability to identify Johnson, were a cause of his complained of loss of position. . As to the latter, we are in general agreement with the district court’s analysis. 760 F.Supp. at 1232-33. It is evident that Johnson and the IRS knowingly stood in an adversarial relationship, one to the other, and that Johnson looked to his lawyer, not to the IRS or Powers, for advice. WIENER, Circuit Judge, dissenting, joined by JOHNSON, Circuit" } ]

[ { "docid": "23465937", "title": "", "text": "prepared by a party in the course of actual litigation with the party seeking discovery of the document. The Supreme Court recognized that there is no requirement that the documents be prepared after litigation is under way. In Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), the Court stated that the privilege extends to those documents prepared “with an eye toward litigation.\" 329 U.S. at 511, 67 S.Ct. 385. If the prospect of litigation is identifiable because of specific claims that have already arisen, the fact that, at the time the document is prepared, litigation is still a contingency has not been held to render the privilege inapplicable. See, e.g., Natta v. Hogan, 392 F.2d 686, 693 (10th Cir. 1968); Lichter v. Mellon-Stuart Company, 24 F.R.D. 397, 399 (W.D.Pa.1959); Developments in the Law—Discovery, 74 Harv.L.Rev. 940, 1044 (1961). Cf. Republic Gear Company v. Borg-Warner Corporation, 381 F.2d 551, 557 (2d Cir. 1967). And, since the privilege thus appears to become operative upon preparation of the document, the additional circumstance that litigation has not yet materialized at the time discovery is sought should not alter the conclusion that the privilege is applicable. If the Brumbaugh opinion was prepared with litigation in mind, and is a proper subject of protection, the Court holds that the privilege attached. UMM has not asserted that the Brumbaugh opinion is not of the character intended to be covered by the work-product privilege. Indeed, the Court finds that it is work-product because it is a writing prepared by an attorney, couched in legal terminology, embodying a compendium of the attorney’s mental impressions and beliefs, and reflects the attorney’s opinion which is based on legal analysis and reasoning and involved the exercise of legal skills. Cf. Hickman v. Taylor, supra, at 510-511, 67 S.Ct. 385. The facts in this case also establish that the preparation of the Brumbaugh opinion was induced by the issuance to UMM of the patent in question and the substantial likelihood that Weiss & Klau would be called upon to defend an infringement action based on the existence of" } ]

[ { "docid": "6232943", "title": "", "text": "seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the Court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. The first sentence of the Rule provides that if a party prepared a document in anticipation of litigation or for trial, that party’s adversary may not obtain disclosure of that document unless the adversary has “substantial need” for it in preparing its case and is unable to obtain its equivalent by other means without undue hardship. The point of the doctrine, as explained in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), is that one party has no right to discovery of material gathered for the purposes of litigation through the efforts of another party when the first party could obtain the same information through its own efforts. “Discovery was hardly intended to enable a learned profession to perform its functions either without wits or on wits borrowed from the adversary.” Hickman v. Taylor, 329 U.S. at 516, 67 S.Ct. at 396. On the other hand, because we favor liberal disclosure in our system of justice so that all the relevant facts of a case may be known and presented at trial to assure a just adjudication, this protection of a party’s work is qualified, in that it gives way if the information contained in it is important to the other party’s preparation of the case and that party is unable to obtain such information without “undue hardship.” There are, moreover, what is sometimes referred to as two levels of work product. The second sentence of Rule 26(b)(3) provides a level of heightened protection for certain material. It instructs the court that even when the desired protection of a party’s factual work on a case is outweighed by the other" }, { "docid": "22947003", "title": "", "text": "for which they were prepared terminates. Certainly, the most controversial problem in the discovery area is the extent to which a party may require divulgence of facts, legal contentions, or trial tactics gathered or ..devised by his adversary in preparation for litigation. The Supreme Court in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), granted certain of these materials a qualified immunity. There the defendant’s counsel had personally secured oral and written statements from witnesses in preparation for pending litigation. The plaintiff’s counsel, in order to prepare for his own examination of these witnesses, sought copies of these signed written statements and detailed resumes of the oral statements. Characterizing these materials as the “work product” of the lawyer, the court held that without a showing of special need they were privileged from discovery. In the federal courts from 1946 to 1970, the scope of Hickman and the work product doctrine was left to adjudication on a case by case basis. The decisions were often conflicting, and we ' have previously quoted one court’s remark that Hickman v. Taylor had opened a Pandora’s Box. After numerous abortive attempts to reconcile the Rules with Hickman, the Advisory Committee on Civil Rules, finally agreed upon a draft of Rule 26(b)(3) of the Federal Rules of Civil Procedure. As adopted by the Supreme Court in 1970, Rule 26(b)(3) contains these special provisions for trial preparation materials: “Subject to the provisions of subdivision (b) (4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made," }, { "docid": "13296078", "title": "", "text": "invoke the so-called “put-in-issue” exception. See, e.g., Chamberlain Group v. Interlogix, Inc., 2002 WL 467153, *3 (N.D.Ill. Mar.27, 2002), quoting Harter v. University of Indianapolis, 5 F.Supp.2d 657, 665 (S.D.Ind.1998) (“when a client files a lawsuit in which his or her state of mind ... may be relevant, the client does not implicitly waive the attorney-client privilege ... unless the client relies specifically on advice of counsel to support a claim or defense”). Accordingly, with regard to documents Bates stamped Nos. 193-202, 204-210, 212, 219-229, 239-242, 244-246, 249-255, and 258-281, Plaintiffs motion to compel is DENIED. B. Work-Product Doctrine The work product doctrine, announced in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), protects otherwise discoverable documents and was subsequently codified as Rule 26(b)(3) of the Federal Rules of Civil Procedure. Rule 26(b)(3) provides: [A] party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of the rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by oth er means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation. E.E.O.C. v. International Profit Associates, Inc., 206 F.R.D. 215, 220 (N.D.Ill. Mar.27, 2002), quoting Fed.R.Civ.P. 26(b)(3); Eagle Compressors, Inc. v. HEC Liquidating Corp., 206 F.R.D. 474, 477-78 (N.D.Ill.2002). The threshold determination is “whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.” Mold-Masters Ltd. v. Husky Injection Molding Systems Ltd., 2001 WL" }, { "docid": "5964302", "title": "", "text": "or letters which would not be available by law to a party ... in litigation with the agency.” 5 U.S.C. § 552(b)(5). This exemption covers work product, which prevents “a party [from] discovering] documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its ... agent.” Fed.R.Civ.P. 26(b)(3)(A); see Grolier, 462 U.S. at 20, 103 S.Ct. 2209 (“It is well established that [exemption 5] was intended to encompass the attorney work[ ]product rule.”); see generally Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947) (establishing work product immunity). In assessing the validity of a work product claim under exemption 5, we determine whether “the documents would be ‘routinely’ or ‘normally’ disclosed upon a showing of relevance.” Grolier, 462 U.S. at 26, 103 S.Ct. 2209. In litigation, Federal Rule of Civil Procedure 26(b)(1) permits a party to discover information “relevant” to a claim or defense. Fed.R.Civ.P. 26(b)(1) (parties “may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense”). But Rule 26(b)(3)(A) protects, as privileged, relevant material that constitutes work product. Thus, this material is not “disclosed upon a showing of relevance” and falls under exemption 5 in FOIA cases. Grolier, 462 U.S. at 26, 103 S.Ct. 2209. Of course, there are ways to overcome the privilege in an individual case. For instance, a paity may overcome a work product claim by showing “it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed.R.Civ.P. 26 (b)(3) (A) (ii). Additionally, although a report prepared in anticipation of litigation is work product, the party must disclose that report if its author plans to testify at trial. Fed.R.Civ.P. 26(a)(2)(B). However, we ignore these case-specific considerations in FOIA cases. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 n. 16, 95 S.Ct. 1504, 44 L.Ed.2d 29 (“The ability of a private litigant to override a privilege claim set up by the government, with respect to an otherwise disclosable document, may itself turn" }, { "docid": "6232942", "title": "", "text": "1993). In light of Judge Preska’s remand and the representations that had been made by defendant’s counsel, I requested that the notes be submitted for in camera review. Having now reviewed them in camera (something which I see with hindsight could have avoided a waste of resources if done earlier), I find it an unhappy but inescapable conclusion that defendant’s counsel misled both me and Judge Preska. I find that the notes are not work product material. I further find that even if they were, it is not their disclosure that would impair our adversarial system but, rather, their nondisclosure. The work product doctrine, codified in Fed.R.Civ.P. 26(b)(3), reads in pertinent part as follows: Trial Preparation: Materials.... [A] party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the Court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. The first sentence of the Rule provides that if a party prepared a document in anticipation of litigation or for trial, that party’s adversary may not obtain disclosure of that document unless the adversary has “substantial need” for it in preparing its case and is unable to obtain its equivalent by other means without undue hardship. The point of the doctrine, as explained in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), is that one party has no right to discovery of material gathered for the purposes of litigation through the efforts of another party" }, { "docid": "8041985", "title": "", "text": "direction, in preparation for trial or in anticipation of litigation, are not discoverable absent a showing of substantial need, undue hardship, or inability to obtain their substantial equivalent by other means. Recognized initially by the United States Supreme Court in Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 393-94, 91 L.Ed. 451 (1947), the doctrine is now codified at Rule 26(b)(3), which provides: (3) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. Fed.R.Civ.P. 26(b)(3) (Emphasis supplied.) Counsel’s mental impressions, and trial strategy enjoy nearly absolute protection from disclosure under Fed.R.Civ.P. 26(b)(3). Protective National, 137 F.R.D. at 280. Parties are obliged to reveal to their opponents facts learned in preparing for trial. The names of witnesses, the existence or non-existence of certain documents, etc. are discoverable. Id. at 278-281. What may not be obtained, however, are the written materials prepared by counsel or at the direction of counsel, such as interview notes, correspondence, memoranda to the file or to the client or consultants on legal strategy, questions of law etc., prepared “with an eye toward litigation.” Bogosian v. Gulf Oil Corp., 738 F.2d 587, 592 (3d Cir.1984). In the context of environmental claims, factual reports and compilations, such as the documentation of activities by experts or consultants carried out for the" }, { "docid": "11393076", "title": "", "text": "Privilege Under Attorney Work-Product The unique question raised by the Chapter 7 Trustee is whether documents prepared by attorneys for Old American in preparation for litigation with parties other than the FCA can now be withheld from production to the FCA under the Attorney Work-Product Doctrine. The Supreme Court first recognized the work-product doctrine in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). In Hickman, the Court held that to qualify for protection as work-product, the materials sought must have been prepared by another party in anticipation of litigation. Id. The doctrine was eventually codified in Fed.R.Civ.P. 26(b). Rule 26(b) provides, in part, that: [s]ubject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party representatives ... only upon a showing that the party seeking discovery has substantial need of the materials in preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. Fed.R.Civ.P. 26(b)(3). In holding the work-product doctrine applicable to third parties through Exemption 5 of Section 552(b) of the Freedom of Information Act, the Supreme Court observed that the literal language of the Rule protects materials prepared for any litigation or trial as long as the materials were prepared by or for a party to the subsequent litigation. Federal Trade Commission v. Grolier Inc., 462 U.S. 19, 103 S.Ct. 2209, 76 L.Ed.2d 387 (1983). In contrast, the Ninth Circuit held that a third party could not invoke the doctrine to defeat the discovery of work-product in litigation unrelated to the party from whom the discovery is sought, Southern California Edison Co. v. Westinghouse Electric Corp., 892 F.2d 778 (9th Cir.1989); although" }, { "docid": "17954634", "title": "", "text": "whether the parties theoretically share similar interests but rather whether they demonstrate actual cooperation toward a common legal goal.” Id., 1995 WL 5792 at *4. C. Work Product Privilege The work-product privilege is, as the Supreme Court has recognized, more broad than the attorney-client privilege. See, e.g., In re Grand Jury Proceedings, 219 F.3d 175, 190 (2d Cir.2000) (citing Hickman, 329 U.S. at 508, 67 S.Ct. 385, 91 L.Ed. 451, and United States v. Nobles, 422 U.S. 225, 238 n. 11, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975)). This privilege exists to protect “attorneys’ mental impressions, opinions or legal theories concerning specific litigation” from discovery. Horn & Hardart Co. v. Pillsbury Co., 888 F.2d 8, 12 (2d Cir.1989). Federal Rule of Civil Procedure 26(b)(3), which codifies the principles articulated in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), grants limited protection against discovery to documents and materials prepared “in anticipation of litigation.” Rule 26(b)(3) provides in relevant part: a party may obtain discovery of documents and tangible things otherwise discoverable ... and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative ... only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. Fed.R.Civ.P. 26(b)(3). The Second Circuit has interpreted the “in anticipation of litigation” requirement broadly. Documents should therefore be deemed prepared in “anticipation of litigation” if “ ‘in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.’ ” United States v. Adlman, 134 F.3d 1194, 1202" }, { "docid": "10758153", "title": "", "text": "v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), that the doctrine became firmly entrenched as an exception to the rule encouraging broad discovery in federal court litigation. The purpose of the work product doctrine, as articulated by the Hickman Court, is to permit the attorney to perform his or her duties without unnecessary interference from opposing parties and their counsel. Id. at 510, 67 S.Ct. at 393. The doctrine protects the written record of an attorney’s efforts, including statements, memoranda, correspondence, briefs, and mental impressions, obtained or prepared by an attorney with an eye toward litigation. Id. at 511, 67 S.Ct. at 393. As codified in Rule 26(b)(3) of the Federal Rules of Civil Procedure, documents prepared in anticipation of litigation or for trial may only be obtained by the adverse party “upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” In the context of patent proceedings, work product immunity has been afforded to: preliminary drafts of legal documents, license agreements and/or assignments, Jack Winter, Inc. v. Keratron Co., [54 F.R.D. 44 (N.D.Cal.1971) ]; opinion letters and background memoranda with respect to the scope and validity of patents and patent applications, Sylgab Steel & Wire Corp. v. Imoco-Gateway Corp., [62 F.R.D. 454 (N.D.Ill.1974), aff'd, 534 F.2d 330 (7th Cir.1976)]; Stix Products, Inc. v. United Merchants & Manufacturers, Inc., [47 F.R.D. 334 (S.D.N.Y.1969) ]; attorney’s analysis or assessments of a party’s position with respect to other parties in an ongoing interference, In re Natta, 410 F.2d 187 (3d Cir.), [cert. denied, 396 U.S. 836, 90 S.Ct. 95, 24 L.Ed.2d 87 (1969)], and intra-office or file notes and memoranda containing summaries of conferences, legal research and comments on technical information, prepared by outside patent counsel or patent department attorneys in connection with an interference. Natta v. Zletz, 418 F.2d 633 (7th Cir.1969). Hercules, Inc. v. Exxon Corp., 434 F.Supp. at 151. Work product protection may be extended to" }, { "docid": "22477125", "title": "", "text": "disclosure of information between an attorney and his client by guaranteeing the inviolability of their confidential communications. The ‘work product of the attorney’, on the other hand, is accorded protection for the purpose of preserving our adversary system of litigation by assuring an attorney that his private files shall, except in unusual' circumstances, remain free from the encroachments of opposing counsel.” The work product protection is a limited immunity of comparatively recent origin. In Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), the Supreme Court carved out a limited exception to the broad scope of discovery under the Federal Rules: “Here is simply an attempt, without purported necessity or justification, to secure written statements, private memoranda and personal recollections prepared or formed by an adverse party’s counsel in the course of his legal duties. As such, it falls outside the arena of discovery and contravenes the public policy underlying the orderly prosecution and defense of legal claims. Not even the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of an attorney.” 329 U.S. at 510, 67 S.Ct. at 393. The doctrine has since been codified in Fed.Rules Civ.P.Rule 26(b)(3): “Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative . . . only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” In general, the doctrine protects memoran-da, recorded mental impressions, synopses of witness statements, drafts of" }, { "docid": "13602306", "title": "", "text": "company executive to another detailing legal advice received from members of the Dorsey firm. No fees have been charged to the trust funds for legal services rendered by the Dorsey firm. Of the documents in question, twenty-seven are dated after May 24, 1969, the date on or about which plaintiff gave Hormel his notice of intent to terminate employment. The remaining five documents are dated during the period August 1958 to August 1966. As to documents dated subsequent to August, 1969, it seems that plaintiff has not made sufficient showing to overcome the qualified immunity from discovery granted to materials prepared in anticipation of litigation. Although suit was not filed in this case until July 1971, it would appear that any documents prepared after plaintiff served his notice of intent to terminate employment which pertain to interpretation of the provisions in question or facts and legal strategy regarding the dispute with plaintiff are covered by the trial preparation and anticipation of litigation provision. Generally the test whether the work product immunity applies is not whether the litigation has begun but whether the documents may be said to have been prepared or obtained in anticipation of litigation. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1946); Stix Products, Inc. v. United Merchants & Manufacturers, Inc., 47 F.R.D. 334 (S.D.N.Y.1969); Ownby v. United States, 293 F.Supp. 989 (W.D. Okl.1968); Kelleher v. United States, 88 F.Supp. 139 (S.D.N.Y.1950). But the work product protection is not absolute and a document protected under it may be discovered. \" * * * upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Fed.R.Civ.P. 26(b) (3). The discovery of work product material therefore may be denied if the party seeking discovery is able to obtain the information desired by other methods of discovery such as by taking the deposition of witnesses, Williams v. Northern Pacific Ry. Co., 30 F.R.D. 26 (D.Mont.1962); Wilson v. David," }, { "docid": "17289888", "title": "", "text": "26(b)(3). In response, defendant argues that disclosure statements do not qualify as attorney work product, and that even if they did, defendant has demon strated “substantial need” justifying discovery of the factual information contained in them. Rule 26(b)(3) of the Federal Rules of Civil Procedure provides, in relevant part: [A] party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative ... only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. Fed.R.Civ.P. 26(b)(3); see Griffith v. Davis, 161 F.R.D. 687, 698 (C.D.Cal.1995) (discussing Rule 26(b)(3)). “Work product protection is designed to preserve the privacy of attorneys’ thought processes, and to prevent parties from ‘borrowing the wits of their adversaries.’ ” William W Schwarzer, A. Wallace Tashima & James M. Wagstaffe, Rutter Group Practice Guide: Federal Civil Procedure Before Trial If 11:39 (2002)(citing Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 91 L.Ed. 451 (1947) and Holmgren v. State Farm Mut. Auto. Ins. Co., 976 F.2d 573, 576 (9th Cir.1992)). Work product may include documents prepared by a party, as well as by the party’s attorney. See Admiral Ins. Co. v. U.S. Dist. Court for Dist. of Arizona, 881 F.2d 1486, 1494 (9th Cir.1989) (“The work-product rule is not a privilege but a qualified immunity protecting from discovery documents and tangible things prepared by a party or his representative in anticipation of litigation.”) (citing Fed.R.Civ.P. 26(b)(3)); United States v. Medica-Rents Co., 2002 WL 1483085, at *2 n. 5 (N.D.Tex.2002) (“The work-product doctrine extends to documents prepared for litigation" }, { "docid": "23536529", "title": "", "text": "state, law. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947); Pete Rinaldi’s Fast Foods v. Great American Insurance Companies, 123 F.R.D. 198, 201 (M.D.N.C., 1988); Cf. Federal Rule of Evidence 501. Protection for work product is not absolute, more accurately being described as a “limited immunity” rather than a privilege, Carver v. Allstate Insurance Company, 94 F.R.D. 131, 133 (S.D.Geo.1982); Pete Rinaldi’s, 123 F.R.D. at 201, because disclosure may be ordered on a showing of substantial need for the materials. The source of the immunity is Federal Rule of Civil Procedure 26(b)(3) (hereinafter, the “Rule”): Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impression, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litiga-tion____ The party resisting disclosure has the burden of establishing the documents’ eligibility for protection. Binks Manufacturing Company v. National Presto Industries, Inc., 709 F.2d 1109, 1120 (7th Cir.1983). The threshold question, then, is whether the requested documents were produced “in anticipation of litigation.” This phrase eludes precise definition, which has resulted in a variety of approaches and conflicting decisions in the case law — especially in the insurance context. Professors’ Wright and Miller’s explanation of its meaning, while not producing uniformity or consensus, has been the one most often cited with approval by the courts: Prudent parties anticipate litigation, and begin preparation prior to the time suit" }, { "docid": "16530927", "title": "", "text": "Pl.Br. at 4. American States has objected to producing these statements because it believes the statements are attorney work-product and therefore are protected from discovery. Additional facts are noted below where relevant. Discussion First recognized by the Supreme Court in the landmark decision of Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), the standard for the work product privilege is now found in Rule 26(b)(3) of the Federal Rules of Civil Procedure, which provides in relevant part: [A] party may obtain discovery of documents and tangible things otherwise discoverable ... and prepared in anticipation of litigation or for trial by or for another party or for another party or by or for that other party’s representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. A federal court facing a claim of work product protection applies the federal standard contained in Fed.R.Civ.P. 26(b)(3), even in diversity cases. See Henderson v. Zurn Industries Inc., 131 F.R.D. 560, 569 (S.D.Ind. 1990). The parties agree that this court applies the standard within the Seventh Circuit, where the subpoena was issued. For materials to be considered attorney work product under this rule, the person claiming protection must show that the materials were prepared in anticipation of litigation. The party seeking the materials can overcome such protection only if the party “demonstrates both a substantial need for the materials and that it would suffer undue hardship in procuring the requested information some other way.” Logan v. Commercial Union Ins. Co., 96 F.3d 971, 976 (7th Cir.1996). The Seventh Circuit has explained that, in determining whether materials were prepared in anticipation of litigation, a court must “look to whether in light of the factual context ‘the document can fairly be said to have been prepared or otherwise obtained because of the prospect of litigation.’ ” Id. at" }, { "docid": "13602307", "title": "", "text": "the litigation has begun but whether the documents may be said to have been prepared or obtained in anticipation of litigation. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1946); Stix Products, Inc. v. United Merchants & Manufacturers, Inc., 47 F.R.D. 334 (S.D.N.Y.1969); Ownby v. United States, 293 F.Supp. 989 (W.D. Okl.1968); Kelleher v. United States, 88 F.Supp. 139 (S.D.N.Y.1950). But the work product protection is not absolute and a document protected under it may be discovered. \" * * * upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Fed.R.Civ.P. 26(b) (3). The discovery of work product material therefore may be denied if the party seeking discovery is able to obtain the information desired by other methods of discovery such as by taking the deposition of witnesses, Williams v. Northern Pacific Ry. Co., 30 F.R.D. 26 (D.Mont.1962); Wilson v. David, 21 F.R.D. 217 (W.D.Mich.1957), and the costs or inconvenience of taking the deposition is not in itself sufficient showing to meet the “undue hardship” requirements of the rule. Berger v. Central Vermont Ry., 8 F.R.D. 419 (D. Mass.1948). Here the information plaintiff seeks might be obtained by other discovery methods. Plaintiff has not as yet taken the deposition of any of the officers of defendant Hormel. Thus as to the documents falling within the work products immunity, plaintiff’s request for production is premature and not based on facts sufficient to overcome the qualified immunity provided by Rule 26(b) (3). The documents preceding plaintiff’s termination of employment clearly fall outside the work product immunity. But defendant claims that these are protected by the attorney-client privilege. The documents consist of three letters from members of the Dorsey firm to the Director, Risk Management & Employees Benefits of Hormel, and two letters from this officer to members of the Dorsey firm. It is plaintiff’s contention that the doctrine of attorney-client privilege is not relevant and cannot be raised" }, { "docid": "23465584", "title": "", "text": "are not inherently more useful for this purpose than any other documents shareholders might seek. Neither do minutes of the Board of Directors possess a sacred character akin to the stockholder’s list which shareholders may inspect as a matter of right. If directors may confer with counsel in confidence, and no one argues that an attorney-client privilege is simply not available, there is little reason to deny confidentiality to a recordation of the confidences. Again, no special need for the corporate minutes or a lack of other means to obtain the underlying information sought has been shown. II. The Work-Product Privilege LTV has claimed the work-product privilege as a further ground for resisting disclosure of information. See, e. g. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). Now codified in Rule 26(b)(3) of the Federal Rules of Civil Procedure, the work-product rule provides: (3) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation, (emphasis added) Foreseeability of Suit Counsel’s efforts on LTV’s behalf were motivated by the anticipation of future litigation, a requirement under the work-product doctrine. J. H. Rutter Rex Mfg. Co. v. NLRB, 473 F.2d 223, 234 (5th Cir. 1973); United States v. Lipshy, supra 492 F.Supp. at 44. From the moment the SEC investigation commenced with the issuance of" }, { "docid": "8041984", "title": "", "text": "Communications made by in-house counsel functioning in the role of business advisor or corporate administrator are not privileged. Drafts of documents prepared by counsel or circulated to counsel for comments on legal issues are considered privileged if they were prepared or circulated for the purpose of giving or obtaining legal advice and contain information or comments not included in the final version. Allegheny Ludlum Corp. v. Nippon Steel Corp., 1991 WL 61144 at *5 (E.D.Pa. Apr. 15, 1991). “Preliminary drafts of contracts are generally protected by attorney client privilege, since ‘[they] may reflect not only client confidences, but also legal advice and opinions of attorneys, all of which is protected by the attorney client privilege.’” Muller v. Walt Disney Productions, 871 F.Supp. 678, 682 (S.D.N.Y.1994), quoting Schenet v. Anderson, 678 F.Supp. 1280, 1284 (E.D.Mich.1988). See also: Upsher-Smith Laboratories, Inc. v. Mylan Laboratories, Inc., 944 F.Supp. 1411, 1444-45. Compare: United States Postal Service v. Phelps Dodge Refining Corp., 852 F.Supp. 156, 163 (E.D.N.Y.1994). Work-product doctrine Attorney work product, i.e. documents prepared by counsel, or at counsel’s direction, in preparation for trial or in anticipation of litigation, are not discoverable absent a showing of substantial need, undue hardship, or inability to obtain their substantial equivalent by other means. Recognized initially by the United States Supreme Court in Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 393-94, 91 L.Ed. 451 (1947), the doctrine is now codified at Rule 26(b)(3), which provides: (3) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery" }, { "docid": "21943451", "title": "", "text": "States v. Bernard, 877 F.2d 1463, 1465 (10th Cir.1989). “Any voluntary disclosure by the client is inconsistent with the attorney-client relationship and waives the privilege.” Id. 2. Work-Product Doctrine In Hickman v. Taylor, the source of the work-product doctrine, plaintiffs sought the production of certain witness statements collected by defendants’ attorney and memoranda concerning the attorney’s interviews of other witnesses. 329 U.S. 495, 499-500, 67 S.Ct. 385, 91 L.Ed. 451 (1947). The Court held that plaintiffs had made no showing of need for the materials or justification for securing them from de fendants’ counsel. The requests thus “[fell] outside the arena of discovery and contravene[d] the public policy underlying the orderly prosecution and defense of legal claims. Not even the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of an attorney.” Id. at 510, 67 S.Ct. 385. “In performing his various duties ... it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.” Id. The work-product doctrine subsequently was incorporated into Fed.R.Civ.P. 26(b)(3), which provides: [A] party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another ... party’s representative ... only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. Thus, the doctrine is interpreted under both the rule and Hickman. See Epstein at 479-81. “At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client’s case.” United States v. Nobles, 422" }, { "docid": "17674241", "title": "", "text": "entitled “REPORT OF CALL.” The other three documents are titled, in part, “INTER-OFFICE CORRESPONDENCE” of The Ceilcote Company. One of these was from J.R. Cummings, a Ceilcote employee, to S.V. Sheappard, President of Ceilcote. Another is from Cummings to Frank Simone, “in-house” counsel for General Signal Corporation, the parent corporation of Ceilcote. The third is from “Case Sales” to Cummings. Defendants contend that eight of the documents constitute “work product” and thus are protected from discovery because Plaintiff has not made the showing of substantial need and undue hardship required by Fed.R.Civ.P. 26(b)(3). Defendants argue that the remaining document, from Cummings to Simone, is protected by the attorney-client privilege. See Fed.R.Civ.P. 26(b)(1); Me. Rules of Evid. 502. Rule 26(b)(3) provides in pertinent part: (3) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by of for that other party’s representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. The leading case on the “work product” doctrine is Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), a decision which pre-dated the incorporation of the work product immunity into Rule 26(b) of the Federal Rules of Civil Procedure. In Hickman, an attorney for the owners and insurers of a tug boat which had sunk interviewed and obtained statements from witnesses to the accident “with an eye toward the anticipated litigation.” Id. at 498, 67 S.Ct. at 387. The Court held that the materials were the “work product” of the attorney and were not discoverable absent a showing of substantial need. The Supreme Court made clear that the policy underlying the work product immunity is protection of the integrity of" }, { "docid": "13215906", "title": "", "text": "government’s review, required his attorneys to assess the weight and organization of the evidence to prove his claims. Consequently, plaintiff asserts that the documents at issue contain plaintiffs counsel’s mental impressions, theories and opinions regarding plaintiffs claims and are, therefore, protected from disclosure by the work-product immunity. The work product doctrine is embodied in Rule 26(b)(3) of the Federal Rules of Civil Procedure. Rule 26(b)(3) states, in pertinent part: ... a party may obtain discovery of documents ... prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative ... only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation, (emphasis added). While trial preparation materials may be discoverable upon an appropriate showing, the materials containing mental impressions, conclusions, opinions, and legal theories of an attorney are discoverable only in rare and extraordinary circumstances. Connolly Data Systems v. Victor Technologies 114 F.R.D. 89 (S.D.Cal.1987). See In re Doe 662 F.2d 1078 (4th Cir.1981) (holding discovery of opinion-work product only in extraordinary circumstances); In re Murphy 560 F.2d 326, 336 (8th Cir.1977) (“Opinion-work product enjoys a nearly absolute immunity and can be discovered only in rare and extraordinary circumstances”); Handgards, Inc. v. Johnson & Johnson 413 F.Supp. 926 (N.D.Cal. 1976). The Supreme Court in Hickman v. Taylor 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), noted the importance of protecting the thought processes of attorneys: Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties ... it is essential that a lawyer work with" } ]